Summary: Mrs B complained the Council communicated poorly and delayed in naming a primary school on her son’s Education, Health and Care plan. We have upheld this complaint. We find the Council’s faults have impacted negatively on the child’s education, delaying his start at school and caused Mrs B distress. At the end of this statement, we recommend action we want the Council to take to remedy this injustice and improve its service for others.

The complaint

1. I have called the complainant ‘Mrs B’. She complains the Council communicated poorly and delayed in naming a primary school on her son’s Education, Health and Care (EHC) plan.
2. Mrs B says as a result her son, ‘C’, missed nearly two terms of school before he could join the reception class in his current school. Mrs B also says she suffered distress and anxiety not knowing when C would begin school nor understanding the cause of the delay.

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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. 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)
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. 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

7. Before issuing this decision statement I considered:

• Mrs B’s written complaint to the Ombudsman and any supporting information she provided, including that gathered in a telephone conversation;
• correspondence between Mrs B and the Council about the matters covered by the complaint, which pre-dated our investigation;
• information provided by the Council in reply to written enquiries;
• relevant law and Government guidance as referred to in the text below;
• relevant guidance published by the Ombudsman, including that on remedies Guidance on remedies - Local Government and Social Care Ombudsman.

8. I gave Mrs B and the Council chance to comment on a draft version of this decision statement and to provide any further evidence they considered relevant. I took account of any submissions they made before finalising the statement.
9. We have an information sharing agreement, with the Office for Standards in Education, Children’s Services and Skills (Ofsted). Under the terms of that agreement, I will share this final decision statement with Ofsted.

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What I found

Relevant 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 arrangements to meet them. The EHC plan is in sections, including ‘Section I’ which names the child’s education setting. We cannot direct changes to the sections about education or name a different school. Only a SEND tribunal can do this.
11. 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.
12. The Government publishes statutory guidance – the Special educational needs and disability code of practice: 0 to 25 years. This contains specific guidance to councils on circumstances where they assess a child’s education, health and care needs before they are of statutory school age. It says: “for children within one or two years of starting compulsory education, who are likely to need an EHC plan in primary school, it will often be appropriate to prepare an EHC plan during this period so the EHC plan is in place to support the transition to primary school”. (see paragraph 9.148 of SEN Code of Practice)

Key council policies

13. When the Council considers whether a child should attend a specialist school, their case will go to its Provision and Placement Panel. This comprises members of its Special Educational Needs and Disability (SEND) service, Headteachers from specialist schools and other relevant professionals. They will consider the merits of each child’s case.
14. The Council has a communication policy for its SEND service. This includes reference to the service’s ‘professional promise’, which among other matters commits the Council to “communicate clearly and appropriately”.
15. The policy says that “when working with families”, the SEND service will strive to “set a clear timeline and have accountability for this”. It notes that to deliver effective casework, SEND staff cannot check their inbox or incoming calls constantly. So, it also provides a ‘duty’ telephone line to deal with queries which staff will answer on a rota. Staff in its customer service centre can also book callbacks by caseworkers who have time set aside each week to do this. The Council commits to respond to telephone calls within five working days and emails within ten working days.

Chronology of key events

Events between February 2022 to March 2023

16. At the beginning of events covered by this complaint C was under statutory school age. He had special educational needs and a diagnosis of autism. He would be old enough to begin attending primary school from September 2022, as part of a reception class. He has an elder sibling who at the time attended ‘School V’, a mainstream primary school. He also has a younger sibling, who has additional needs. C had attended a nursery school attached to School V but had left this by December 2021. This was because the nursery could not meet C’s special educational needs.
17. Mrs B had discussions with School V about C attending the primary school. The school SENCO (Special Educational Needs Co-Ordinator) encouraged Mrs B to ask the Council to assess C’s education, health and care needs, which it agreed to do. This led to the Council issuing, in February 2022, a final EHC plan. This set out C’s needs and how to meet these. It did not name an education setting for C. In ‘Section I’, it said “this section is left blank in a draft EHCP”. The EHC plan recorded that C still attended nursery.
18. After the Council issued the EHC plan it wrote to Mrs B to ask her view on what primary school she wanted C to attend. Mrs B expressed a preference for School X, which is a specialist school. Between February 2022 and July 2022 Mrs B and a health worker who supported her, made several attempts to contact C’s caseworker in the Council’s SEND service. But they did not receive a reply to emails or telephone calls. Mrs B had understood initially that C was on School X’s waiting list. However, when she contacted the school directly, it told her this was not the case. It had no record of C.
19. In July 2022, Mrs B spoke to a manager in the Council’s SEND service. They told Mrs B that C’s case would go to a Provision and Placement Panel for a decision.
20. The Council says at the end of July 2022 it contacted School Y, a mainstream school, on the understanding C would transfer there. But the school told it that C was not due to attend. Later the Council described Mrs B as having taken C off the school roll. It recognises this was wrong. Mrs B does not understand why the Council thought C might attend School Y.
21. Mrs B moved house and heard nothing further. C’s elder sibling moved from School V to a mainstream primary school, School Z. In December 2022 Mrs B approached School Z about C attending there also. She was positive about the school and in January 2023, the Council agreed to consult School Z.
22. School Z responded to the consultation expressing concern about funding for C’s placement. It told Mrs B also of its concerns. Several times in February and March 2023 Mrs B or her health worker tried to contact the Council to discuss. On one occasion, Mrs B’s health worker had a pre-booked call with the Council but she did not receive a call back as arranged. In emails to the Council the health worker expressed concerns for Mrs B and C’s wellbeing, explaining that C would benefit from time in a reception class before transitioning to Year One. Also, that Mrs B experienced distress not knowing what was happening with C’s education while caring for his younger sibling also.
23. In mid-March 2023 the Council amended C’s EHC plan, naming School Z. He began his schooling there around the same time, part-way through the spring term. He has integrated gradually to the school, on a reduced timetable because of his special educational needs, of up to two days a week while in the reception class. Since beginning school C has also been referred to other agencies for support, including speech and language therapy and occupational therapy.

Mrs B’s complaint

24. In March 2023 Mrs B made a complaint to the Council about her experience. She complained the Council:

• had not acted on her request to name School X on C’s EHC plan and she could not speak to C’s caseworker about this;
• had not kept in touch with her to explain what was happening after it consulted School Z, failing to answer calls or return calls when arranged.

25. The Council replied to Mrs B’s complaint in April 2023. It apologised that Mrs B had experienced difficulties contacting its SEND service. It explained that it had not consulted School X and had paused the work of the Provision and Placement panel in Autumn 2022. It said that it would now undertake that consultation and let her know the outcome.
26. The Council said that School Z had raised concerns about having enough funding to meet C’s needs. But that this was not a lawful reason for it to refuse C’s placement. So, the Council had gone on to name School Z on C’s EHC plan. The reply also explained the Council had reviewed its SEND service and the support Mrs B might expect in the future from its caseworkers.

My findings

The Ombudsman’s jurisdiction

27. The first matter I have considered is our jurisdiction to investigate the Council’s actions around naming an education setting in Section I of C’s EHC plan. When the Council issued the EHC plan in February 2022, I note this wrongly recorded C still attended a nursery school. It also did not name a primary school setting for C. Both of these are matters which Mrs B could have potentially appealed to the SEND Tribunal as an EHC plan, can name a nursery setting in ‘Section I’ as well as a primary school.
28. However, on this occasion I consider there are special reasons, that mean it would not be reasonable for me to expect Mrs B to have taken that route then. These are:

• the EHC plan document was confusing; while it was a final version, Section I said it could not name a school as the plan was at draft stage. So, it was not clear this was the final version;
• the Council went on after issuing the plan, to ask Mrs B about her preference for C's primary school. With the start of term still some months away, Mrs B received reassurance therefore that naming a primary school was 'in hand’;
• the Council’s decision not to name a school in February 2022, did not arise from any concurrent dispute that would be more suitable to appeal. For example, where parents and councils sometimes disagree on whether a child needs a specialist school placement;
• that any appeal Mrs B might have made about the Council not naming a nursery setting for C would have likely been fruitless, given the limited time to resolve this before C was due to start primary school.

29. Consequently, I am satisfied I can investigate all the Council’s actions described in the factual part of the statement above.

On the substance of the complaint

30. I have considered first the Council’s actions when it came to naming a school on C’s EHC plan. There is a lack of record keeping showing exactly what steps the Council took and when, to consider on what date C would start school and what school he should attend. The records it has provided me are piecemeal and incomplete, which appears to reflect the approach taken in this case.
31. First, there is no record of the Council considering if it should name a nursery setting initially, even though it understood C attended nursery and this was an option available to it.
32. Second, there is no record the Council did anything in a practical sense to consider Mrs B’s request for C to attend School X. It failed to consult the school. Later, it told Mrs B the case would go to its Provision and Placement Panel but did not refer it to that panel.
33. Third, the Council cannot show that it adequately considered other alternatives for C’s schooling from September 2022. While not documented, I accept the Council’s account that it approached School Y about whether C would start there. But after it learnt C was not due to attend that school, it did not act to consult other schools. C’s case drifted.
34. I see no reason to think C’s case would not have drifted for longer if Mrs B had not got back in touch to enquire about School Z being named on his EHC plan. Consultations with schools should take around three weeks to complete. In this case, School Z responded within a fortnight to the Council’s consultation, but the Council then did not take the next steps for another five weeks. While this delay was not excessive, coming after the earlier failings outlined above, it still contributed to the overall delay in the Council naming an education setting on C’s placement.
35. This sequence of events and the overall delay that resulted, must result in a finding of fault.
36. Next, I have considered the Council’s communications with Mrs B while these events unfolded. The Council has already recognised some failings here. I find the Council failed to keep its ‘professional promise’ or meet the aspirations of its communication policy. This was especially after the issue of C’s EHC plan when she asked for C to attend School X. Then again in early 2023 when Mrs B wanted C to attend School Z. It did not respond to emails or telephone calls in the agreed timescales. This too was a fault.
37. That fault has also been compounded by events since Mrs B complained. The Council told her it would consult again with School X, which it has done. But it has not given Mrs B any information on that consultation. So, she still does not know its thinking on whether C needs a specialist school placement.
38. These faults have caused injustice. I cannot say that but for the fault there would be no disruption to C’s education. It may not have been possible for him to return to a nursery setting after issue of the EHC plan, because of limited time. And his integration into school may always have been gradual because of his special educational needs. But even so, I consider the disruption to C’s early years education, caused by the 15-month gap in him attending any education setting, will have caused him harm. I also take account here that C has now received referrals to support services such as occupational therapy and speech and language therapy. I consider these are likely to have been made sooner but for C being out of school.
39. In addition, the poor communications have caused Mrs B avoidable distress, on top of the demands placed upon her in caring for two young children with additional needs. She also experienced unnecessary time and trouble when communicating with the Council’s SEND service.

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Agreed action

40. The Council has accepted the findings set out above. To remedy the injustice caused to Mrs B and C it has agreed, that within 20 working days of this decision, that it will:
1. write to Mrs B with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
2. make a symbolic payment to Mrs B of £2000;
3. clarify the outcome of its consultation with School X and whether it proposes amending C’s EHC plan accordingly.
41. The symbolic payment agreed at paragraph 40b) takes account of our guidance on remedies. This suggests that a symbolic payment to reflect a loss of education of between £900 and £2400 per term, dependent on factors such as a child’s age. In this case I take account that C is in the early stages of his education and was belatedly able to access some of his reception year. So, I consider a payment at the lower end of the scale, equivalent to the loss of one and a half terms of education appropriate (or £1350). To this is added a further £250 to reflect Mrs B’s distress, time and trouble; £200 to reflect uncertainty about whether more might have been done to secure appropriate support for C while he was still in nursery education and £200 to reflect the delay in C being referred for occupational therapy and speech and language therapy, because of the delay in him starting school.
42. The Council has also agreed it can learn wider lessons from this complaint and try to improve its service to avoid a repeat. Within two months of a decision on this complaint it will deliver a briefing to all its SEN caseworkers who draw up EHC plans for children of pre-school age. This will set out its expectations when it comes to naming a school placement on an EHC plan, taking account of Government guidance and the findings of this investigation. In particular, it will stress the need to ensure that children are not left without a placement when parents choose for them to begin reception classes.
43. The briefing can be in a form of the Council’s choosing, either in person or virtually; as a stand-alone event or as part of a team briefing or training. But we will require evidence the Council has complied with this action, as well as the actions to provide a personal remedy to Mrs B, described above.

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Final decision

44. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mrs B and C. The Council has agreed action that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman