Summary: The Council delayed identifying a suitable specialist school placement for Mrs B’s son which affected the provision he could receive, delayed issuing a final education, health and care plan following a review and failed to keep Mrs B up-to-date with what was happening. An apology, payment to Mrs B and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained the Council:
• delayed identifying a suitable specialist school for her son;
• failed to provide her son with full-time education;
• delayed issuing a final education, health and care plan (EHCP) after a review in 2021; and
• failed to properly communicate with her.
2. Mrs B says failures by the Council have caused an escalation in her son’s behaviour and anxiety. Mrs B says that has led to her being injured and has caused her family significant distress. Mrs B says she has also had to give up work.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
5. 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

6. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mrs B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. 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 have happened

9. A child with special educational needs (SEN) may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them.
10. The Government has issued the SEN code of practice (code of practice). This says EHCPs must be reviewed by the local authority as a minimum every 12 months.
11. The code of practice says within four weeks of the review meeting, the local authority must decide whether it proposes to keep the plan as it is, amend the plan or cease to maintain the plan, and notify the child’s parent or the young person. If the plan needs to be amended, the local authority should start the process of amendment without delay.
12. The code of practice says where the local authority proposes to amend an EHCP it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. The child’s parent or the young person should be informed they may request a meeting with the local authority to discuss the proposed changes.
13. Following representations from the child’s parent or the young person, if the local authority decides to continue to make amendments, it must issue the amended EHCP as quickly as possible and within 8 weeks of the original amendment notice. If the local authority decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit.

What happened

14. Mrs B’s son has special educational needs and was attending a mainstream primary school full-time until December 2019. From December 2019 Mrs B’s son stopped attending school full-time. He remained on roll at the school and received 9 hours provision over three mornings a week initially with some alternative provision on a Thursday. In December 2020 the Council agreed to consult for a specialist provision placement.
15. The Council carried out a review of Mrs B son’s EHCP in February 2021. The Council told Mrs B in March 2021 it would issue an amended EHCP. The Council issued an amended EHCP in April 2021, although Mrs B says she did not receive that EHCP until 26 May 2021. By that point the provision to Mrs B’s son had increased to include one hour alternative provision in the afternoon on a Friday. That was increased again in March 2022 to a full day on a Friday.
16. In June 2021 Mrs B contacted the Council to request a specialist setting. The Council consulted one specialist setting which told the Council in July 2021 it did not consider it was a suitable placement for Mrs B’s son.
17. The Council consulted two further specialist provisions in September 2021. Both told the Council they did not consider they were suitable for Mrs B’s son. The Council subsequently asked one of those provisions to carry out a further observation of Mrs B’s son. Although that was delayed until February 2022 the provision again said it was not suitable for Mrs B’s son.
18. The Council consulted a further specialist provision in October 2021. That provision told the Council in November 2021 it did not consider it was suitable for Mrs B’s son.
19. The Council consulted three further schools in February 2022. Two of those schools told the Council in March 2022 they were not suitable. The third school told the Council in July 2022 it was a suitable school for Mrs B’s son. However, that school told the Council it did not have a place available and could only put Mrs B’s son on the waiting list.
20. In the meantime Mrs B had chased the Council to find out what was happening during May 2022. Following Mrs B’s contact the Council consulted four schools. None of those schools identified themselves as suitable for Mrs B’s son.
21. The Council consulted a further three schools in June 2022. One of those schools identified itself as suitable for Mrs B’s son but told the Council it did not have any places available.
22. Following a complaint to her MP the Council wrote to Mrs B in June 2022 to apologise for the delay issuing the final EHCP for her son. The Council explained it had been unable to identify a school place for Mrs B’s son but was continuing to consult appropriate schools. The Council apologised for the poor communication.
23. The Council issued a final amended EHCP which named the existing mainstream school on 30 June.
24. In August 2022 the Council consulted an additional two schools. Neither of those schools identified themselves as suitable for Mrs B’s son.
25. By the beginning of October 2022 the school that had identified itself as suitable for Mrs B’s son in June 2022 told the Council it had a place available for Mrs B’s son. Mrs B’s son began attending the school at the end of October 2022.
26. The Council says it is continuing to develop its specialist provision, is working with current specialist settings and mainstream schools and is opening a new special school to address shortages in specialist provision.

Analysis

27. Mrs B’s son has not received full-time education since December 2019. I am not exercising the Ombudsman’s discretion to investigate the period from December 2019 to December 2020 as that is more than 12 months before the complaint to the Ombudsman. I see no reason why Mrs B could not have complained to the Ombudsman within 12 months. I have, however, exercised the Ombudsman’s discretion to investigate the period from December 2020 onwards as that is the point at which the Council agreed to consult specialist school placements.
28. Mrs B says the Council delayed identifying a suitable specialist school for her son and in putting in place full-time education while that specialist placement was sought. The evidence I have seen satisfies me the Council agreed a specialist placement should be sought for Mrs B’s son in December 2020. I am concerned to note though the Council did not begin consulting specialist schools until June 2021, six months later. Even then, the evidence shows the Council only consulted one specialist school at that point. As we make clear in our publication ‘Education, health and care plans: our first 100 investigations,’ issued in October 2017, we expect councils to consult education settings early and concurrently rather than sequentially to avoid unnecessary delay reaching a decision. Failure to do that in this case is fault.
29. I am also concerned there is no evidence the Council carried out consultations of specialist schools between November 2021 and February 2022 and between March and May 2022. That added an additional 6 months delay, making a total of 12 months where there is no evidence the Council was trying to identify a specialist school placement for Mrs B’s son. That is also fault.
30. I cannot say, on the balance of probability, if the Council had carried out consultations throughout the entire period it would have identified a specialist school placement for Mrs B’s son before October 2022. That is because I cannot speculate about whether earlier consultation with the various potential schools would have resulted in a school place being identified. However, I consider Mrs B has suffered an injustice as she is left with uncertainty about whether the situation could have been resolved earlier. That is a significant injustice in this case because it is clear failing to receive an offer of a suitable placement at a specialist school has had a profound impact on Mrs B’s son. That has included behavioural issues which have clearly had an enormous impact on Mrs B and her husband.
31. As remedy for this part of the complaint I recommended the Council pay Mrs B £1,000 to reflect her uncertainty about whether a school placement could have been identified for her son earlier and the impact that has had on her and her family. I also recommended the Council remind officers dealing with children who need to move to a different school or different type of school of the need to ensure consultations are undertaken promptly and that consultations with various schools take place concurrently rather than sequentially. The Council has agreed to my recommendations.
32. I consider it likely the impact on Mrs B, her husband and her son has been increased because Mrs B’s son did not receive full-time education between December 2020 and the end of October 2022. Despite the fact Mrs B’s son remained on roll at the allocated mainstream school it is the Council that retains the responsibility for ensuring a child receives a full-time education. In this case though the ability to provide that full-time education was affected by the fact the Council was unable to identify an appropriate specialist school placement for Mrs B’s son. I would not be recommending a financial remedy here for missing full-time education if I were satisfied the Council had made consistent attempts to identify a suitable placement for Mrs B’s son. As I make clear in the previous paragraph though, I am not satisfied the Council made consistent attempts in this case and it is therefore possible Mrs B’s son missed out on some additional education as a result of delays by the Council. To reflect that uncertainty I recommended the Council make an additional payment of £1,000. The Council has agreed to my recommendation.
33. Mrs B says the Council delayed issuing a final EHCP following a review in January 2021. The evidence I have seen satisfies me the Council did not issue the final EHCP until June 2022. That is considerably outside the time limits set out in the statutory guidance which I refer to in paragraphs 11-13. The Council says it only delayed issuing the final EHCP at Mrs B’s request as she wanted the Council to name a school in section I. Mrs B disputes that. I do not have any evidence from the Council to show this is what Mrs B asked for. In any event, there is no reason why the Council could not have issued a final EHCP before it identified a suitable specialist placement. Even if Mrs B had asked the Council to put issuing the final EHCP on hold the Council is still subject to the same time limits set out in the statutory guidance. Failure to comply with those time limits is therefore fault. I do not consider it is likely this caused a significant injustice to Mrs B’s son given there are limited differences between the provision in the EHCP in place before the review in January 2021 and the plan issued in June 2022. Nevertheless I consider Mrs B has suffered an injustice as she has had to chase the Council for updates.
34. Mrs B says the Council’s communication with her has been poor and she has had to continually chase the Council. Mrs B also says Council officers never return her calls and officers are often off sick or on annual leave. In contrast the Council says it has tried to keep Mrs B up-to-date and has responded to all her communications.
35. The Council has not provided me with a copy of all the communications from Mrs B to the Council. However, there is sufficient information in the concerns Mrs B has raised with the Council to satisfy me it is likely, on the balance of probability, Mrs B was having to chase the Council for updates. I also note in the Council’s complaint response in June 2022 it apologised for the level of communication and information provided to Mrs B. Given the length of time the issues in this case dragged on I am concerned the Council left it to Mrs B to seek updates rather than proactively contacting her to update her. Failure to communicate regular updates to Mrs B is fault.
36. To reflect the communication issues and the delay issuing the final EHCP and the effect those had on Mrs B I recommended the Council pay her an additional £500. I also recommended the Council remind officers dealing with EHCPs of the need to comply with the timescales set down in the code of practice. That makes a total financial remedy of £2,500. The Council has agreed to my recommendations.

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Agreed action

37. Within one month of my decision the Council should apologise to Mrs B and pay her £2,500.
38. Within two months of my decision the Council should:
• remind officers dealing with EHCPs of the need to comply with the timescales set down in the code of practice;
• remind officers dealing with children that need to move to a different school or type of school of the need to ensure consultations are undertaken promptly and concurrently rather than sequentially; and
• provide evidence of the action the Council is taking to identify additional specialist school places.

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Final decision

39. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman