Summary: Mrs Y complains about the Council’s delay in amending and issuing her son’s revised Education Health and Care Plan (EHCP) which in turn frustrated her right to appeal against the named provision. We find the Council failed to act within the statutory timescales and this fault caused injustice to Mrs Y which the Council will remedy with an apology and a payment.

The complaint

1. Mrs Y complains the Council delayed in reviewing, amending, and issuing her son’s EHC plan, which in turn frustrated her right to appeal to the SEND tribunal. She also complains the Council has failed to implement appropriate SEN provision and has failed to respond to her Subject Access Requests about these matters.

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What I have and have not investigated

2. There may have been grounds to exercise discretion to investigate older matters due to the ongoing nature of some of the claimed fault and injustice. However, there are other jurisdictional limits which prevent us from investigating the period between August 2019 and December 2020. The reasons for this are explained in paragraph 17.
3. I have therefore decided to start my investigation from 10 December 2020 when D’s EHCP was reviewed. There will be periods thereafter which fall outside of jurisdiction, but the reasons for this will be explained in this statement.
4. I have not investigated Mrs Y’s complaint about the Council’s delay in responding to her Subject Access Request because Mrs Y has already complained to the Information Commissioner’s Officer (ICO) about this matter. This is the correct body to consider complaints about freedom of information.

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The Ombudsman’s role and powers

5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
7. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
8. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

9. I tried contacting Mrs Y by telephone to discuss her complaint, but she was not available. I considered any information she submitted, including the complaint correspondence.
10. I made enquiries of the Council and considered its response. I also consulted the relevant law and guidance which is referenced where necessary in this statement.
11. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
12. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

What should happen

13. Children with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the Tribunal can do this.
14. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHCPs. The guidance is based on the ‘Children and Families Act’ 2014 and the SEN Regulations 2014.
15. The regulations state, “Where the local authority decides to amend the EHC plan following representations from the child’s parent or the young person, it must send the finalised EHC plan to:
1. the child’s parent or to the young person; 
2. the governing body, proprietor or principal of any school or other institution named in the EHC plan; and (c) to the responsible commissioning body 

as soon as practicable, and in any event within 8 weeks of the local authority sending a copy of the EHC plan in accordance with paragraph (2)(a)”.

16. Where an EHCP is amended, the following review must be held within 12 months of the date of issue of the original EHC plan or previous review (not 12 months from the date the amended EHC plan is issued)
17. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHCP has been issued.
18. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHCP we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

What happened: summary of key events

19. Mrs Y’s son, who I will call D, has received provision named in an EHCP since primary school. I will not provide too much detail here about D’s needs to protect his anonymity. However, it is relevant to note that D has complex social, emotional and mental health (SEMH) needs due to trauma he experienced as a young child.
20. D attended a mainstream primary school with measures in place, as per his EHCP, to help support his leaning. It is evident from the files that D struggled as he progressed through primary school and in academic year six he stopped attending.
21. The Council issued a final EHCP on 9 September 2020 naming a mainstream secondary school.
22. On 10 December an Annual Review took place. This recommended some amendments to D’s plan. I will not revisit them all here, but the changes were around ensuring that D had access to specifically trained key workers, that staff had an action plan for times of crisis and D had access to places of safety.
23. The Council issued the proposed amended EHCP on 19 May 2021 for Mrs Y’s comments. The Council also shared the plan with an independent specialist school, which I will call School A, as per Mrs Y’s preference. Mrs Y submitted her comments four days later and the Council arranged a meeting on 3 June to discuss.
24. The school responded on 8 June and said it could, in theory, meet D’s needs but confirmed it was full in D’s year group and could not offer him a place.
25. On 2 July 2021 the Council considered D’s case at its specialist provision panel. The panel said the Council should consult another specialist SEMH school, which I will call School B, as this was likely the nearest one which could meet D’s needs.
26. The records show the Council consulted School B on 10 August; five weeks after the panel’s recommendation. As per the regulations, School B was required to respond within 15 school days and by 15 September.
27. Around this time Mrs Y submitted a Subject Access Request (SAR) to the Council.
28. The Council consulted another school, School C, on 28 September.
29. School B responded on 1 October to confirm that it could not offer a place to D due to the number of children already on roll.
30. Dissatisfied with the lack of action, Mrs Y complained to the Council on 13 October. The Council responded on 4 November. In summary this said:
• There is fault by the Council’s because it did not amend and send the EHCP to Mrs Y following the meeting in June 2021. The Council agreed to do so by 11 November 2021 and Mrs Y will have 15 days to review and send comments. If Mrs Y agrees, the Council will issue a final plan by 23 November.
• Due to a lack of specialist places in the Council’s area, the Council may need to consult schools outside of its area.
• The final place at School A was allocated to another child outside of the Council’s area. In any event, the Council had not yet agreed funding for D’s therapeutic provision.
• There was delay by the Council in consulting School B. The school then failed to respond by the deadline which the Council overlooked.
• D’s current school can contact School A regarding outreach services.
• The Council accepts it failed to respond in time to Mrs Y’s SAR.
31. The Council issued the amended draft EHCP to Mrs Y on 11 November and the final plan on 24 January 2022. This named the mainstream secondary school already allocated to D. Mrs Y submitted an appeal.
32. Between June and August, the Council consulted five other schools. The Council also approached School A again regarding outreach services. They all refused either due to lack of capacity or inability to meet D’s needs.
33. The Council responded to Mrs Y’s stage two complaint on 3 August. In summary, this said:
• The Council had consulted School A about outreach services but accepted there was delay in having funding for this authorised by the Council.
• The Council has now agreed to fund the outreach services but is waiting for School A to confirm its ability and capacity for D.
• Consultations with other schools remain ongoing, but this is tied to ongoing tribunal proceedings.
34. From the records we have seen, on 11 September School A confirmed it could meet D’s needs and had a place available to offer. The Council confirmed its agreement to fund the placement on 21 October. Mrs Y says at this point it was too late to withdraw from the Tribunal hearing. The Tribunal issued a consent order confirming the agreement between parties to issue an amended EHCP naming School A.
35. The Council contacted School A on 31 October to confirm transition arrangements for D. Mrs Y and D met with the school on 14 November and the Council issued the final EHCP naming School A on 28 November.
36. D now attends School A.

Was there fault in the Council’s actions causing injustice to Mrs Y and D?

37. As the Council has already acknowledged, there is evidence of delay in D’s case:
• Firstly, it did not issue a finalised plan within eight weeks of the December 2020 review. The records show the Council issued a proposed draft plan on 19 May 2021 but, for a variety of reasons, the Council did not issue a finalised plan until 24 January 2022: thirteen months after the review.
• The Council also delayed in consulting School B following the panel’s recommendation and failed to keep appropriate oversight of the case to ensure the school responded within 15 school days. The Council has already acknowledged and apologised for this.
• In its complaint response, the Council told Mrs Y that it would issue D’s final EHCP by 23 November however this did not follow until 24 January.
• There is further unexplainable delay by the Council in confirming therapeutic funding for D to be delivered alongside his mainstream provision. The Council told Mrs Y on 3 August 2021 that funding for D’s ‘outreach’ therapeutic provision had been agreed. The Council did not consult School A regarding its availability to deliver outreach services until June 2022.
• There was a further gap between the school confirming its availability for a placement on 11 September and the Council confirming its agreement to fund the placement on 21 October.
38. During this time D attended mainstream secondary school with a range of measures in place to support him, as per his EHCP in place at the time. Although the delay in issuing the final plan did not leave D without provision, it frustrated Mrs Y’s right of appeal which she was unable to exercise until January. This is injustice caused by fault which the Council will remedy with the agreed actions listed in the section below.
39. We have also considered whether D needs remedy for the effects of that delay. For example, if D was impacted by delay in arranging educational provision which was suitable for his needs. In this case, we have seen evidence which shows Mrs Y’s preferred school, which was the one eventually named on D’s EHCP, did not have places available until September 2022. Furthermore, the other schools consulted by the Council were not able to offer a place to D during the 2021/22 academic year. Therefore, even if the Council had acted within statutory timescales, and Mrs Y had the opportunity to appeal sooner, it is unlikely the outcome would have been different.
40. Although there was some delay in arranging outreach services for D at School A, I am mindful that D had access to provision as per his EHCP and attended school during the period of delay. We cannot say D’s EHCP was unsuitable for him at the time as this matter falls outside of our jurisdiction. We also cannot say with certainty whether School A had capacity to deliver outreach services in 2021. This does create some uncertainty, but for the reasons already explained, we do not consider this created a significant injustice for D which requires a remedy.
41. The Council confirms it has carried out a full SEND Pathway Review. It has recently restructured the SEND Team to ensure its services are more “collaborative, communicative and effective”. The Council is confident this will enable specific areas of specialism and focus to support the statutory processes.

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Agreed action

42. Within four weeks of my final decision, the Council will provide evidence to show it has:
• apologised to Mrs Y for the delay in issuing D’s final EHCP and paid £300 in recognition of her time, trouble and frustrated SEND tribunal appeal rights.
43. Within eight weeks of my final decision, the Council will provide evidence to show it has:
• reminded relevant officers of the Council’s statutory duties under Regulation 22 of the Special Educational Needs and Disability Regulations 2014. This could be in the form of a briefing paper or staff training.

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Final decision

44. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The agreed actions listed above are an appropriate remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman