Summary: Mr X complained about how the Council dealt with his child’s, Y, Education Health and Care Plan. Mr X also complained about the Council’s poor communication with him and how it dealt with his complaint. There were faults by the Council which caused injustice to Y and Mr X. The Council will take action to remedy the injustice caused.

The complaint

1. Mr X complained about the Council’s:

• failure to issue its decision notice whether to maintain, amend or cease his child’s, Y, Education Health and Care Plan (EHC Plan) within four weeks of the annual review meeting in October 2022
• failure to provide Y with suitable alternative provision since he stopped attending school in 2022
• delay with issuing Y’s final EHC Plan after the annual review meeting held in October 2022
• delay in dealing with his complaint.

2. Mr X said the Council’s failings led to Y being left without a school placement and loss of education. Mr X also said the matter caused him distress and the time and trouble chasing the Council for updates.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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.
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)
6. 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

7. I have considered the information Mr X provided and the information the Council provided in response to my enquiries.
8. I have sent Mr X and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

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What I found

Legislation and Guidance

9. Section 19 of the Education Act 1996 (the Act) says each local authority will make arrangements for the provision of suitable education at school, or otherwise than at school, for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them. The Act goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs (SEN) he or she may have.
10. Section 42 of the Children and Families Act 2014 imposes a duty on local authorities to secure the special educational provision specified in an Education, Health and Care Plan (EHC Plan).
11. 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. The EHC Plan is set out in sections. The Ombudsman cannot investigate or make changes to the sections about special educational provision. Only the tribunal can do this.
12. Councils should ensure an annual review of the child’s EHC Plan is carried out within 12 months of the issue of the original plan or the completion of the last annual review. The purpose of the annual review is to consider whether the special educational support and educational placement is still appropriate. The annual review is not complete until the council has decided to either maintain, amend or cease to maintain the EHC Plan.
13. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
14. Where a council proposes to amend an EHC Plan, the law says 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 within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
15. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
16. Where a parent or young person disagrees with the contents of the EHC Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) tribunal.
17. Where a Council names no school or only a type of school in a final Plan this decision carries a right of appeal to the tribunal.
18. Parents do not have a right of appeal until a final EHC Plan (or decision not to issue a Plan) is made and a decision letter issued by the Council.

What happened

19. This chronology includes key events in this case and does not cover everything that happened. This covers the period, September 2022 to August 2023.
20. Mr X’s child, Y, has autism spectrum disorder. Y has an EHC Plan.
21. Y attended School A. The last time Y attended school was in September 2022 when he was temporarily excluded. During Y’s exclusion and due to his health conditions and concerns regarding his needs, School A confirmed it could no longer meet Y’s needs.
22. On 3 October 2022, an annual review of Y’s EHC Plan was completed. It was agreed that School A was no longer suitable to meet Y’s needs and that it was not in Y’s best interest to return there. It was agreed that School A would provide Y with alternative provision while the Council arranged a new school placement for him. Y remained on School A’s roll.
23. School A arranged and provided an off-site 10 hour per week bespoke alternative provision package for Y (life skill-based tuition and therapeutic sessions).
24. In November 2022, Mr X made a complaint to the Council. He complained about the Council’s lack of support, poor communication and how it had dealt with Y’s case. Mr X asked the Council for its decision about Y’s EHC Plan following the annual review meeting. He said Y had been attending the alternative provision School A had arranged for him for about six weeks. Mr X said he was concerned about Y being isolated from other children. He said the longer the Council took to find Y a permanent school placement, the harder it would be for him to reintegrate into a school setting. Mr X asked the Council when it would send him a copy of Y’s amended EHC Plan.
25. On 11 November 2022, the Council sent its decision letter to Mr X. It decided to amend Y’s EHC Plan. On the same day, the Council sent a consultation letter to Mr X’s preferred school (School 1) about a placement offer for Y.
26. On 29 November 2022, the Council sent Mr X an email with its response to his complaint. It said due to the high volume of EHC Plan amendment requests, it was unable to provide Mr X with a timescale of when it would send him a copy of Y’s proposed amended EHC Plan. The Council informed Mr X it had consulted with School 1 and that it would update him once it received the school’s response.
27. On several occasions Mr X chased the Council for its formal response to the complaint he made in November 2022. The Council said it sent its response to him on 29 November 2022. But the Council said it would ask its customer service team to send its formal complaint response letter to Mr X.
28. The Council received School 1’s formal consultation response. School 1 did not offer Y a placement because it said its setting was not suitable to meet his needs.
29. In early January 2023, the Council amended Y’s EHC Plan. It sent Mr X a copy of Y’s amended draft EHC Plan and invited parental comments. It also sent a consultation letter to School A with Y’s amended draft plan. The Council then held a meeting with Mr X and School A to discuss Y’s case.
30. The meeting notes stated School A had been providing Y with a 10 hour per week bespoke alternative provision package. School A said it could only fund the alternative provision until February 2023 when Y’s EHC Plan allocated funding would be exhausted. The Council considered and agreed to continue to fund Y’s bespoke package with the existing providers from February 2023 until Y was placed in a school setting. It also agreed to increase Y’s bespoke package to 15 hours per week. The Council said it would amend Y’s EHC Plan with the actions agreed at the meeting. It said it would refer Y’s case to a panel to consider Mr X’s parental request for a specialist provision (School 2).
31. The Council made further amendments to Y’s EHC Plan to include parental comments and the agreed actions from the meeting. School A sent its formal consultation response to the Council, and it maintained it could no longer meet Y’s needs.
32. At the end of January 2023, Mr X made a further complaint to the Council. He complained the Council had not adhered to statutory timelines in relation to Y’s EHC Plan since the 2022 annual review meeting. He also said he was yet to receive the Council’s formal response to his November 2022 complaint.
33. In late February 2023, after a panel considered Y’s case, the Council made further consultations with three schools including Mr Y’s specialist school preference, School 2.
34. Mr X chased the Council on several occasions for updates on its consultations with the schools, Y’s EHC Plan and its responses to the two complaints he had submitted to it. Mr X expressed his frustrations about the Council’s poor communication with him and how it had dealt with Y’s case so far.
35. By the end of March 2023, the Council received all the decisions from the specialist schools it consulted with. All the three schools did not offer Y a placement because they said they were not suitable to meet Y’s needs.
36. When Mr X did not receive any update from the Council about the special schools’ consultation responses, his complaints and Y’s EHC Plan, he made a complaint to the Ombudsman.
37. In April 2023, the Council issued its response to Mr X’s complaint. It apologised to Mr X for its delays and its poor communication with him which it said was due to workload and resource issues. The Council said it would share with Mr X the consultation responses and the next steps to confirm a school placement for Y.
38. In May 2023, the Council informed Mr X about the specialist schools’ consultation decisions. It confirmed none of the schools offered Y a placement and that the panel agreed Y required a bespoke curriculum. The Council said Y’s case had been referred back to the panel and it was decided the Council should explore some autism support centres for Y. The Council said it would consult with two autism support centres and it would update Mr X once it received any responses.
39. In June 2023, the Council sent consultation letters to two autism support centres. One of the centres responded and it did not offer Y a placement.
40. In response to our enquiries, the Council acknowledged and apologised for its delays in responding to Mr X’s concerns. The Council said it was reviewing a consultation response from a local school with an enhanced specialist provision for Autism and Social Communication needs. The Council said if it is unable to secure the placement for Y, it would seek a placement within the independent sector and it would finalise Y’s EHC Plan. The Council said it had updated Mr X about the current situation on Y’s case.
41. The Council said it continues to fund and provide Y with a bespoke alternative provision package to meet his needs while it seeks an appropriate school placement for Y. The Council confirmed it assessed the suitability of the bespoke package and reviewed Y’s progress and responses to the alternative provision. It evidenced and confirmed this was done through the providers’ tuition reports and through meetings it held with School A and Mr X.

Analysis

42. Statutory guidance states councils must within four weeks of an EHC Plan annual review, notify the child’s parent of its decision to maintain, amend or discontinue the Plan. In this case, Y’s EHC Plan annual review was completed on 3 October 2022 and the Council sent its decision letter to Mr X on 11 November 2022. This was a delay of approximately one and a half weeks. While the Council failed to issue its decision letter within the stipulated statutory timeframe, I do not consider the delay caused significant injustice to Y.
43. However, the Council has not issued Y’s final EHC Plan following the decision to amend the Plan. The Council has apologised to Mr X for its delays which it said were due to its workload, resource issues and Y’s case being a complex one. While I note there were various reasons for the delays in finalising Y’s Plan, this is a significant delay, and it is not in line with the statutory guidance.
44. I acknowledge the Council has consulted with a number of different schools including specialist schools and autism support centres but none of the schools offered Y a placement. I find the Council has not demonstrated it has considered all its options for a suitable placement for Y. There was no evidence it explored placements in the independent sector. The Council could have issued Y’s final EHC Plan without naming a school which would have allowed Mr X to exercise his right of appeal to the tribunal if he wished to do so. I consider the Council has allowed the situation to drift. It has taken the Council 14 months and it is yet to issue Y’s final plan. This is fault. It caused Mr X distress, frustration, worry, uncertainty and it frustrated his right to appeal to the tribunal. It also meant Y has been out of a school setting for a significant period and he has been left without an up‑to‑date EHC Plan since October 2022.
45. In the absence of a final EHC Plan, I cannot know what additional provision may have been agreed and included. Therefore, the Council should take action to pay the financial remedy as set out in the ‘agreed action’ section below to acknowledge the uncertainty caused. Once the Council issues Y’s final EHC Plan, Mr X can exercise his right of appeal to the tribunal if he disagrees with it.
46. Where a child does not attend school by reason of illness, exclusion or otherwise, councils have a duty to provide the child with suitable education. Councils also have a duty to secure the special educational provision specified in an EHC Plan. Y was provided with a bespoke alternative provision package when he stopped attending School A in September 2022. The Council subsequently increased the alternative provision hours in February 2023 to meet Y’s needs as specified in his previous (2021) EHC Plan. Y’s progress was monitored by the Council through the providers’ tuition reports. The Council has and will continue to provide Y with the bespoke package until it arranges a school setting for him. While I do not find fault by the Council for providing Y with alternative provision, I do not consider the provision was entirely suitable from when it started in September 2022. The Council increased Y’s bespoke package from 10 hours to 15 hours in February 2023. This suggests Y should have received increased provision between September 2022 and February 2023. Although School A was funding and arranging the alternative provision for this period, the Council was still responsible for ensuring it was adequate and met Y’s needs. This was fault and caused an injustice to Y for a period of five months.
47. I find fault by the Council for its poor communication with Mr X. Mr X repeatedly chased the Council for responses from the schools the Council consulted with, panels’ decisions on Y’s case and updates on Y’s EHC Plan. This was fault. It caused Mr X distress, uncertainty and frustration.
48. I also find the Council was at fault in how it dealt with his November 2022 and January 2023 complaints. The Council delayed and failed to provide a formal response. This was fault. This caused Mr X frustration and time and trouble chasing for a response.

Agreed action

49. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Mr X for the distress, uncertainty and frustration caused by the Council’s failings as identified above. The apology should be in accordance with our new guidance, Making an effective apology
• on behalf of Y, pay Mr X a symbolic payment of £500 in recognition of the injustice caused to Y by the Council’s failure to provide him with suitable alternative provision prior to February 2023. This recommendation acknowledges the fact Y was receiving some provision during this period
• on behalf of Y, pay Mr X an additional £700 for the uncertainty and injustice caused by the Council’s failure to issue Y’s 2022 final EHC Plan. This remedy covers January 2023 to July 2023 at £100 per month (the start of the Council’s delay to the end of the last academic year). The Council should then make an ongoing payment of £100 per month from September 2023 (the new academic year) until the Council issues Y’s final EHC Plan and engages Mr X’s appeal rights
• pay Mr X £250 to acknowledge the distress, worry, frustration caused to him by the Council’s failing identified above and for denying him of his right of appeal to the tribunal.

50. I note in recent investigations by this office, we have made several recommendations relating to the Council’s complaint handling and communication with parents. We asked the Council to consider policy options for better communication with parents about EHC Plan cases. In view of this, within one month of the final decision:

• provide the Ombudsman with further update on the outcome of the SEND Co‑ordination and Oversight Groups consideration of the issues and actions it proposes to take to address its complaint handling and communication difficulties.

51. We also made a recent service improvement recommendation to the Council to produce an action plan to demonstrate how it will review and monitor EHC Plan annual review process. I note the Council has provided us with an action plan, so within three months of the final decision:

• provide the Ombudsman with further update on the Council's progress as set out in its action plan on how it will meet statutory timescales for EHC Plan annual review process and issuing final EHC Plans.

52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

53. I find evidence of fault leading to injustice. The Council has agreed to take action to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman