Summary: The Council delayed issuing a final Education, Health and Care plan when Mrs B’s son, M, was in his last year of primary school. If there had been no delay, M would have started senior school around 6 months earlier, and the Council would not have taken action against Mr and Mrs B for not sending M to a school which it later conceded was not suitable for his needs. The Council has agreed to apologise and make payments for the loss of education and distress. It has also agreed to make service improvements.

The complaint

1. Mrs B complains that the Council delayed issuing a final EHC (Education, Health and Care) plan when her son, M, was in his last year of primary school.
2. Mrs B says that M missed six months of education because the Council named a school in M’s EHC plan which was unsuitable for his needs and he felt unable to attend. Mrs B says that instead of supporting M to attend the school, it threatened to take legal action against Mr and Mrs B for not sending M to school.
3. Mrs B also complains that the Council failed to provide M with alternative education while he was unable to attend school.
4. Mrs B says that M’s education and welfare have suffered as a result of the Council’s failings, and the family has suffered financial loss and distress, which has affected their health.

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What I have and have not investigated

5. I have investigated Mrs B’s complaint that the Council delayed issuing M’s final EHC plan.
6. I have not investigated Mrs B’s complaint that the Council disclosed another individual’s details to her, or her complaint that it delayed responding to her subject access request. I consider it would have been reasonable for Mrs B to refer these matters to the Information Commissioner.
7. I have not investigated Mrs B’s complaint about the Council’s alleged failure to refer M to CAMHS (Child and Adolescent Mental Health Services) in October 2020, or its delay carrying out an OT (Occupational Therapy) assessment after a referral was made in October 2020. This is because these complaints have been made to us late and I do not consider there are good reasons for us to exercise discretion to investigate them now.
8. I have not investigated Mrs B’s complaint that the Council ignored M when he said that he did not want to attend the school named in his EHC plan, or Mrs B’s complaint that the school was not suitable and could not provide the support M needed. This is because we cannot investigate a complaint if someone has appealed to a tribunal, and Mrs B appealed the Council’s decision to name the school in M’s EHC plan to the SEND Tribunal.
9. Case law has confirmed that the Ombudsman cannot investigate the consequences of a decision which has been appealed to a tribunal. I am therefore unable to consider any claimed injustice arising from the Council’s decision to name the school in M’s EHC plan, which includes the advocacy fees and legal fees Mrs B incurred appealing to the tribunal.
10. I have not investigated the Council’s alleged failure to provide M with alternative education when he did not attend school. This is because his absence from school related to the type of school placement, and so is too closely linked to the appeal.

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The Ombudsman’s role and powers

11. 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)
12. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
13. 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)
14. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
15. 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.
16. We have no jurisdiction where a parent has appealed to the Tribunal to investigate events from the date the SEN appeal right arises until the appeal is completed. Any loss of education or fault during this period which is a consequence of the decision being appealed is out of jurisdiction, even if this means the injustice will not be remedied. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)
17. We have limited resources and must investigate complaints in a proportionate manner, focusing on general themes and issues, rather than providing a response to every individual issue raised in a complaint.
18. 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)
19. 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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How I considered this complaint

20. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• considered the documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Relevant legislation and government guidance

Education, Health and Care plans

21. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them.
22. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
23. An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. The key transfers are:
• early years provider to school
• infant school to junior school
• primary school to middle school
• primary school to secondary school, and
• middle school to secondary school.
24. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

School attendance and alternative education

25. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
26. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
27. The Act places a duty on parents to ensure their children of compulsory school age receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence, they can receive a fine or imprisonment of up to three months.

Overview

28. M is 13 years old and has been diagnosed with autism, anxiety and hypermobility disorder. He has special educational needs and an EHC plan.
29. M’s EHC plan was reviewed in September 2020, when M was in his last year of primary school. The Council agreed to name Mrs B’s preferred school, which I will refer to as school A, in the plan for M to attend from September 2021. School A is a mainstream school.
30. In May 2021, Mrs B told the Council that they had visited another school which she considered could better meet M’s needs. Mrs B asked if this school, which I will refer to as school B, could be named in M’s EHC plan. School B is a specialist setting.
31. The Council decided that school A could meet M’s needs and a final EHC plan naming school A was issued in July 2021.
32. Mrs B disagreed that school A could meet M’s needs and appealed to the SEND Tribunal on 1 September 2021.
33. M was due to start at school A in September 2021 but M felt too anxious to attend.
34. Mrs B decided in November 2021 that school B would also not be suitable for M. She asked the Council to consult another school, which I will refer to as school C, which is also a specialist setting.
35. In November 2021, the Council wrote to Mrs B about M’s absence from school. It said that it may take action against Mr and Mrs B if M did not start attending school regularly. Mr and Mrs B were then invited to a school attendance panel meeting to discuss M’s attendance.
36. Mrs B attended the meeting with a solicitor. The meeting was adjourned because the Council representative did not attend. The meeting was not rearranged because the following day, the Council’s SEND panel agreed that M could move to a different school.
37. In January 2022, the Council agreed to name school C in M’s EHC plan. He started attending the following month.
38. M did not attend school or receive any alternative education between 3 September 2021 and 27 February 2022.

Analysis

39. The Special Educational Needs and Disability Regulations 2014 states that where a child is within 12 months of a transfer between phases of education, the Council must review and amend the EHC plan by 15 February in the calendar year of the transfer. M’s final EHC plan was not issued until 23 July 2021. This delay was fault.
40. Mrs B was unable to appeal until the final EHC plan was issued. If there had been no delay, I consider it likely that Mrs B would have appealed around six months earlier. It is reasonable to assume that if Mrs B had done so, the Council would have agreed that M needed to attend a specialist setting six months earlier and M would have had the provision he needed six months earlier. Taking school holidays into account, I consider M missed out on around five months of provision due to the Council’s delay issuing the final EHC plan.
41. It follows that if there had been no delay and M had started attending a specialist setting in September 2021, there would have been no dispute about transition planning or M’s attendance at school A, which led to the Council issuing a warning letter and holding a school attendance panel meeting. This caused the family significant distress and they were put to avoidable time, trouble and expense.

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Agreed action

42. The Council will take the following actions within four weeks of my final decision:
• Apologise to M and his family for the failings identified in this case.
• Make a payment of £3000 for the education M missed between 3 September 2021 and 28 February 2022 and the impact of this on his welfare. The money should be spent on something which will benefit M’s education.
• Make a payment of £1500 for the distress and the avoidable expense the family has been put to as a result of the failings identified.
43. The Council will take the following actions within eight weeks of my final decision:
• Investigate why M’s EHC plan was not amended by the deadline of 15 February 2021, and take action to prevent such failings in future.
• Review its procedures to ensure that in all cases where a child or young person is moving between key phases of education, the review and amendments to their EHC plan are completed by 15 February in the calendar year of the transfer.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. I have completed my investigation and uphold Mrs B’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman