Summary: The Council was at fault for delaying in putting in place the special educational provision in a child’s Education, Health and Care plan. This caused injustice as the child did not start receiving the provision when they should have. The Council agreed to apologise, make a payment to reflect the distress suffered and make a payment for the benefit of the child’s education, to recognise the time they spent without provision.

The complaint

1. Mrs X complains the Council was at fault in the process of assessing her son’s special educational needs, completing his Education Health and Care plan (EHC plan) and in arranging the provision set out.

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What I have and have not investigated

2. I have not investigated Mrs X’s concerns about the type of school the Council initially named in Section I of the EHC plan or her concerns about the types of schools the Council consulted. This is because these matters were appealable to the SEND Tribunal and I am satisfied Mrs X could have appealed to the SEND Tribunal about these matters.
3. This investigation focuses on the delay in arranging the provision for Mrs X’s child.

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The Ombudsman’s role and powers

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. 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.
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
7. 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

8. As part of this investigation, I considered the information provided by Mrs X. I discussed the complaint with Mrs X over the telephone. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Mrs X and the Council for comments.
9. 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

Law and guidance

10. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan 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.
11. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school.
12. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
13. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. 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 EHC plan has been issued.
14. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

What happened

15. In December 2021, the Council agreed to carry out an Educational Needs Assessment for Mrs X’s child, Y. Y was under the statutory school age.
16. In May 2022, the Council issued a draft EHC plan for Y. Following this the Council consulted with a specialist school, on 6 June 2022, which accepted children from ages two and up. The specialist school responded to the Council on 8 June 2022 and said it could meet Y’s needs but did not currently have a space available for him.
17. On 16 June 2022, the Council issued Y’s final EHC plan. This named an early years setting in section I of the plan. Provision in the plan included small group and one to one learning.
18. The Council consulted with a further six schools on 23 June 2022. This included mainstream schools, however by September 2022 all of these schools had responded and said they could not offer Y a placement.
19. On 7 September 2022, the Council contacted a Provider to see if they could provide Y with the provision in his EHC plan while the Council identified a suitable placement for Y. The Provider responded to the Council and said it could not offer provision. The Council consulted with School Z, a specialist nursery, on 12 September 2022 and School Z agreed to offer Y a place.
20. Mrs X attended mediation with the Council in late September 2022 as she disagreed with aspects of Y’s EHC plan. The Council agreed to name School Z in Y’s EHC plan as part of the mediation.
21. Y started attending School Z in October 2022 and the Council sent Mrs X an amended EHC plan naming School Z.

Mrs X’s complaint

22. Mrs X complained to the Council in September 2022. Mrs X complained about:
• The Council’s decision to name an early years setting in section I of the EHC plan.
• The Council’s decision to approach mainstream providers when Y needed a specialist provider and the way the Council communicated to her about this.
• Y’s social worker who asked her what she would do to meet his needs in his EHC plan over the next year. Mrs X said this was the Council’s responsibility.
23. The Council responded to the complaint in October 2022. The Council said it was appropriate for it to use the term early years setting in Y’s EHC plan as there were no early years specialists in its area. The Council said it would look to improve its communication with Mrs X and offered her an apology for the way it communicated with her through the consultation process and for delays in responding to her emails. The Council said it did not have a statutory duty to offer Y a school place due to his age, however the Council did have a duty to provide the provision specified in his EHC plan. The Council said it did not mean to give Mrs X the impression it had not accepted this duty.
24. Mrs X asked the Council to consider her complaint further in late October 2022. Mrs X raised concerns about the level of communication she received from the Council. She also mentioned the Council were still approaching mainstream schools for Y for his transfer to primary school.
25. The Council provided its final response to Mrs X in November 2022:
• The Council acknowledged there had been problems about the level of communication Mrs X received. The Council said it was recruiting more staff to deal with the increase in caseloads it had.
• The Council said it also had included the details of worker’s line managers at the bottom of emails so people could contact a manager if they were not getting a response from their caseworker.
• The Council reiterated its position that it did not have a duty to provide a school placement for Y at this time but did have a duty to provide the support in the EHC plan.
26. Mrs X remained dissatisfied and complained to the Ombudsman.

Analysis

27. The Council was at fault for delaying in putting in place the provision in Y’s EHC plan. The Council finalised the EHC plan in June 2022 but Y did not start to receive the provision until October 2022.
28. I accept there were challenges with finding Y a school or nursery placement. The Council did consult with a specialist provider in June 2022 but this provider did not have any places available. The Council then went onto consult with a further six providers, albeit two weeks later.
29. However it was not until September 2022 that the Council contacted a provider who could temporarily put in place the provision in his EHC plan while his placement was finalised. This was around the same time School Z offered Y a place. Had the Council done this sooner it may have been able put in place temporary provision for Y whilst it found a placement for him.
30. As I have found fault I need to consider what injustice this caused. Y’s EHC plan was finalised in June 2022 but he did not start to receive the provision in his EHC plan until October 2022. This is an injustice to Y as he should have started receiving the provision sooner. In addition, Mrs X spent time contacting the Council about Y’s placement.
31. In relation to the level of communication Mrs X received from the Council through this process, the Council has recognised this fell below its standards and apologised to Mrs X. The Council also stated it is recruiting more staff to address the backlogs caseworkers face. While this is welcomed, the Council should also pay Mrs X an amount to recognise the distress this caused her.

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Agreed action

32. Within one month of my final decision the Council agreed to carry out the following:
• Apologise to Mrs X for the delay in putting in place the provision in Y’s EHC plan.
• Pay Mrs X £300 to recognise the distress caused to her for the delays in putting in place the provision in Y’s EHC plan and for the level of communication she received from the Council.
• Pay Mrs X £600, for the benefit of Y’s education, to recognise the time he spent without the provision in his EHC plan.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I have completed my investigation and found the Council was at fault which caused injustice. The Council has agreed to the above actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman