Summary: Mrs X complained about the Council’s failure to consult with her preferred school, delay in the Education, Health and Care Plan process and poor communication. We found the Council was at fault. The Council has agreed to apologise and make a payment to Mrs X to acknowledge her avoidable distress, uncertainty, time and trouble. The Council will also take action to improve its service.

The complaint

1. Mrs X complains about the Council’s failure to provide a suitable education and support for her son’s special educational needs during the academic year, 2022/2023. In particular, she says the Council:
1. failed to consult an appropriate post-16 placement when it should have done. The delay in doing so caused her son to miss the September 2022 intake and was out of education for a whole academic year;
2. failed to issue a final Education, Health and Care Plan (EHCP) when it should have done following an annual review in September 2021. This then delayed when Mrs X was able to take her case to Tribunal; and
3. failed to communicate with her properly.
2. Ms X says this has had a detrimental impact on her son’s educational development and overall wellbeing. She has also suffered distress due to him being out of school for such a long time compounded by the poor service she has received from the Council. It also had a negative impact on the rest of her family.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. 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. Where someone has appealed we cannot investigate the matter under appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as “the Tribunal” in this decision statement.
7. 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.
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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What I have and have not investigated

9. I have investigated events from September 2021 to July 2022.
10. Certain decisions related to special educational needs have a right of appeal to Tribunal.
11. Mrs X submitted an appeal to the Tribunal in June 2022 about the named provision specified in the EHCP. The Tribunal’s final order was issued in May 2023.
12. Where a parent has appealed to the Tribunal, we cannot investigate Council actions between the date the appeal right arose until the appeal is completed, where it is linked to the matters appealed. So, in these circumstances, the Council’s actions during that period are outside the Ombudsman’s jurisdiction. It also means we cannot seek a remedy for any injustice during that period.

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How I considered this complaint

13. I spoke to Mrs X and considered the information she provided.
14. I made enquiries of the Council and considered its response and case records.
15. I reviewed the relevant law and guidance.
16. Mrs X and the Council had an opportunity to comment on my draft decision. I considered all comments received before making a final decision.

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What I found

Relevant law and policy

Education, Health and Care Plans

17. A child with special educational needs (SEN) 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 (Section I). Only the Tribunal can do this.
18. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.

Annual reviews

19. The Department for Education publishes statutory guidance, the SEND Code of Practice (the Code), which sets out the duties of councils. The guidance says:

• within four weeks of the review meeting, a council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent of its decision; and
• when changes are suggested to the draft EHCP and agreed by the Council, it should amend the draft plan and issue the final EHCP as quickly as possible, and within eight weeks of the date the Council send the proposed amendments to the parents.

Transfers between phases of education

20. An EHCP 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. In the case of a move to post-16 education, the review and any amendments, including the naming of the institution should normally be completed by 31 March, or at least five months before the transfer takes place.

Parental preference

21. If a parent makes a request for a post-16 institution, the council must comply with that preference unless it is unsuitable or would be incompatible with the education others. The council must consult with the institution prior to naming it in the EHCP.

What happened

22. The chronology below sets out the relevant key events but is not intended to describe everything that happened.
23. Mrs X’s son, Child Y is a young person with SEN. He was due to move to a post-16 placement in September 2022.
24. In September 2021, an annual review was held to discuss future options A Council officer (Officer J) was in attendance. Mrs X specified her preference was for Child Y to attend School P (an Academy Special School). Officer J was recorded as saying approval from a panel would be required for Child Y to attend School P. This could take several weeks to obtain.
25. A draft amended EHCP was sent on to Mrs X in October 2021. This did not name a particular school/college. Mrs X assumed the Council was seeking approval from the panel and consulting with School P.
26. The Council consulted with two establishments, including College Q on 25 October 2021. In response, College Q said it was able to meet Child Y’s needs and had availability. The Council did not consult School P.
27. Mrs X strongly disputed the suitability of College Q due the risk posed by its layout.
28. By Spring 2022, Mrs X says she had not heard anything from the Council about progress being made to name School P in the EHCP, despite leaving messages for Officer J. She contacted School P directly who had no knowledge of her son and confirmed it had not been consulted.
29. Mrs X expressed her concerns about this to the Council. It agreed to consult with School P and did so in late March 2022. In response, School P said that while it was able to meet Child Y’s needs, it was full and so would be unable to offer Child Y a place. Child Y’s case was considered by the panel on 2 May 2022.
30. In June 2022, the Council issued the final EHCP. This named College Q at Section I.
31. Mrs X appealed this decision to the Tribunal. The Tribunal issued its final order in May 2023. This named School P at Section F. I understand Child Y started attending School P in September 2023, having missed a full year of education.
32. Mrs X complained to the Council about its handling of the case, excessive delay and poor communication. She felt if the Council had consulted with School P after the annual review in September 2021, a place would have been available for the start of the autumn term 2022.
33. In its responses, the Council:
1. accepted there had been delay in the EHCP process, caused by staffing and resource issues; and
2. accepted communication with Officer J, “did not take place with regular frequency”.
34. The Council apologised to Mrs X. Disappointed by this outcome, Mrs X brought her complaint to the Ombudsman.

Analysis

35. Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. We can look at delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place.
36. With this context in mind, I will consider Ms X’s separate areas of complaint below.

Failure to consult School P

37. The law says councils must name a parent’s chosen school in the EHCP unless there are specified reasons for not doing so.
38. In its response to my enquiries, the Council’s position is that it consulted School P at the correct time.
39. I disagree. The 2021 annual review made it clear that School P was Mrs X’s preferred placement. I am satisfied the Council was aware from the start of the process that School P was the parental preference. As such, the Council should have consulted School P at the same time it consulted College Q in October 2021. Instead, it waited until late March 2023. By that time School P was full.
40. The Council has provided no explanation as to why it did not consult with School P earlier.
41. This failure to consult School P, as the parental preference, at the earliest opportunity was fault.
42. It is speculative whether earlier consultation with School P would have altered the outcome. The Council may have decided it was not appropriate to name School P in the final EHCP or School P may have been full. However, I do acknowledge the Council’s fault leaves Mrs X with considerable uncertainty as to whether her son may have been able to attend School P in September 2022 had this fault not occurred. This is an injustice which the Council needs to remedy (below).

Delay in the EHCP process

43. The annual review meeting took place in September 2021. Had the legal timeframe been complied with, the final amended EHCP should have been issued in late December 2021. The Council did not issue a final amended plan until June 2022. This was a delay of nearly six months. This was particularly significant because Child Y was transferring to post-16 education, an important milestone.
44. The Code says the final EHCP must be finalised at least five months before the start of the autumn term.
45. This delay was fault. It also affected Mrs X’s right of appeal and set the Tribunal process back by six months. This clearly caused Mrs X avoidable uncertainty and frustration. It also caused uncertainty as to whether Child Y could have returned to education sooner than he did.
46. This injustice requires a remedy (below).

Poor communication

47. Mrs X has made it clear she feels let down by the lack of communication throughout the process.
48. To the Council’s credit, it accepted in its complaint response that communication with Mrs X was poor and apologised. I agree. Aside from a letter saying the EHCP would be amended, there is one email from May 2022 to Mrs X up to the point the Final Plan was issued. There are no records of any other contact with Mrs X during this time. This evidences what Mrs X has said about receiving no information about what was happening to secure a place for her son.
49. This is fault that clearly caused distress to Mrs X. I do not consider the Council’s apology is adequate to remedy this injustice. This is reflected in my recommendations.

Loss of education

50. For the reason I have explained at paragraph 12, I am unable to seek a remedy for any loss of education from the date of Mrs X’s appeal to the Tribunal.
51. The Tribunal issued its final order in late May 2023, with two months of the summer term 2023 left. I have seen evidence the Council sought to engage with Mrs X about providing alternative education and this was refused as being unsuitable.
52. It is entirely understandable that Mrs X would want to wait for Y’s move to School P. However, because the Council made an offer of alternative education, I am satisfied it was not at fault here. Consequently, I will not seek to remedy this relatively short period of time when Y was out of school.

Injustice/remedy

53. Having identified fault causing injustice, we make recommendations to remedy this.
54. Mrs X clearly suffered injustice in the months leading up to the Tribunal caused by the delay in the process and failure to consult with School P. She suffered distress, uncertainly and spent time and trouble trying to resolve the matter.
55. A payment for distress is usually up to £500. In exceptional cases, a higher amount may be justified.
56. I am satisfied the distress, uncertainty and loss of opportunity caused to Mrs X justifies a financial remedy above this amount, after taking into account:

• the poor communication and case handling;
• the uncertainty caused by the failure to consult with Mrs X’s preference and issue the final EHCP when it should have done;
• the delay in the ECHP process. This then denied Ms X her right to appeal to the Tribunal by six months; and
• the avoidable time and trouble in Mrs X having to complain about the Council’s actions.
• the stage in Child Y’s educational journey.

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Agreed action

57. The Council had agreed to take the following action within four weeks from the date of my final decision:
1. Apologise in writing to Mrs X.
2. Pay Mrs X £1000 to acknowledge her distress and uncertainty caused by the faults I have identified.
58. The Council had agreed to take the following action within three months from the date of my final decision:
1. Share this decision with all members of the SEN team with a reminder of the obligation to consult with the parental preference, issue EHCPs at the correct time and provide regular updates to parents.
2. Reflect on the issues raised in this decision statement and identify any areas of service improvement, particularly around communication with parents, delay in the EHCP process and consultation procedure. The Council should prepare a short report setting out what the Council has done/intends to do to ensure similar problems do not reoccur. This report should be sent to the Ombudsman.
59. The Council should provide us with evidence it has complied with the above actions.

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Final decision

60. I have completed my investigation. I have found the Council to be at fault and made recommendations to remedy the injustice to Mrs X. The Council has agreed with my recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman