Summary: the Council’s failure to follow its procedures when responding to consultation from a neighbouring Council about a proposal to name an ‘integrated resource’ in Mrs M’s son B’s Education, Health and Care (EHC) Plan ended with the Plan specifying provision that was not available. This has caused disruption to B’s education and considerable uncertainty. We recommended a remedy.

The complaint

1. Mrs M complains about the Council’s failure to allocate a place for her son, B, at the ‘integrated resource’ named in his Education, Health and Care (EHC) Plan. Mrs M complains about the uncertainty, stress and inconvenience this caused, and the subsequent disruption to B’s education.

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The Ombudsman’s role and powers

2. 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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot investigate a complaint once someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions concerning special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. Once we are satisfied with a council’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

6. I have considered information provided by Mrs M and two Councils. I invited Mrs M and the Council to comment on my draft decision.

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What I found

7. There are two councils involved in this complaint, Barnsley Metropolitan Borough Council and Sheffield City Council. I shall refer to them as ‘Barnsley’ and ‘Sheffield’. Mrs M has made complaints to both Councils. This statement concerns Barnsley.
8. Mrs M lives in Sheffield. Sheffield maintains an Education, Health and Care (EHC) Plan for her son, B. B was due to transfer to secondary school in September 2023. Mrs M wanted him to attend an ‘integrated resource’ at a nearby school. The school is in Barnsley. Sheffield completed a ‘transition review’ and issued an amended EHC Plan on 3 February 2023. The Plan said B would attend the ‘integrated resource’ at the nearby school.
9. Shortly after Sheffield issued B’s EHC Plan, it became apparent something had gone wrong and there was no place for B at the integrated resource.
10. Mrs M complained to both Councils. The Councils blamed each other.
11. The school agreed to admit B as a ‘mainstream’ pupil but was unable to offer him a place in the ‘integrated resource’. Sheffield agreed to fund support for B’s special educational needs as a mainstream pupil at the school.
12. Unhappy with the outcome, Mrs M complained to the Ombudsman. She wanted to secure suitable support for B, whether at the ‘integrated resource’ or elsewhere. She wanted the Council responsible for the mistake to apologise and take steps to ensure similar problems do not happen again.
13. Things did not work out for B as a mainstream pupil. The school held an emergency review of his EHC Plan in October 2023. Mrs M asked Sheffield to name a different school. The Council declined. Mrs M appealed to the SEND Tribunal. A hearing is scheduled for December 2024.

Reviewing Education, Health and Care Plans

14. The procedure for reviewing and amending an Education, Health and Care Plan is set out in legislation and Government guidance.
15. The council responsible must review and amend, where necessary, a child’s EHC plan before 15 February in the calendar year of the child’s transfer to secondary school.
16. The law says that councils must name a parent’s preferred school in their child’s Plan, so long as the school is suitable and the child’s attendance would not be an inefficient use of resources. (Children and Families Act 2014, section 39)
17. A school named in section I of an EHC Plan must admit a child. (Children and Families Act 2014, section 43)
18. Councils must consult with schools before naming them in a child’s Plan. Where the school is maintained by another local authority, the council must also consult that authority. (Children and Families Act 2014, section 39)
19. Schools and councils should respond to consultation within 15 days. (SEND code of practice, paragraph 9.83)
20. The council responsible for maintaining a child’s EHC Plan decides which school the child will attend.

What went wrong?

21. An ‘integrated resource’ offers specialist provision within a mainstream school setting. An ‘integrated resource’ is not a school in its own right.
22. Consultations for places in ‘integrated resources’ are complicated, and both Councils operate procedures to ensure places are allocated fairly. In response to my enquiries, Barnsley acknowledged that it did not follow its procedures in this case.
23. Neither the school nor the Council (Barnsley) responded to the consultation within 15 days. Following a meeting with Mrs M and G, the school responded to confirm it could meet B’s needs. When chased for a response, Barnsley forwarded the school’s response. It should have referred the case to a Panel for consideration.
24. The mistake came to light on 9 February. Sheffield had issued B’s EHC Plan and sent a copy to the school. This appears to have sounded alarm bells at the school, since the school contacted Sheffield to explain that places in the ‘integrated resource’ were commissioned by Barnsley Council. The school suggested the Councils liaise to discuss B’s case.
25. Email correspondence provided by the Councils shows they discussed B’s case. Discussion appears to have focussed on whether Sheffield had followed the correct procedure. The Councils did not resolve the problem.

Who was responsible?

26. Sheffield consulted both the school and Barnsley before issuing B’s EHC Plan. It received a positive response from the school, and a copy of the school’s positive response from the Council. Sheffield carried out all the administrative actions required.
27. Barnsley’s failure to follow its procedures when responding to consultation from Sheffield meant Barnsley gave the ‘wrong’ response. Barnsley should have said the case needed to go before a Panel for a decision.
28. Barnsley’s failure to follow its procedures appears to have been the cause of the problem.
29. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council. My recommendations, which the Council has accepted, are at the end of this statement.
30. The school agreed to admit B as a mainstream pupil and Sheffield agreed to fund the special educational provision in section F of his Plan.
31. Regrettably, things did not work out for B as a mainstream pupil. Sheffield held an emergency review of his EHC Plan in October 2023 and began the search for a different school. Unable to secure a place at her preferred school, Mrs M has appealed to the SEND Tribunal. In the meantime, Sheffield is providing a bespoke package of tuition and alternative provision.
32. I was very sorry to hear from Mrs M that the disruption to B’s education is having a significant impact on him and his mental health. I understand the search for a suitable school with space for B is proving difficult, and the Tribunal hearing is not scheduled until December 2024. This is no doubt a source of considerable worry and stress for the whole family. Mrs M told me she is exploring whether B will be able to repeat the whole of Year 7.
33. I record this here to illustrate the severe consequences for Mrs M and B which followed the failure to secure a place at the integrated resource. I am, however, unable to comment further since Mrs M’s appeal to the SEND Tribunal takes the complaint out of the Ombudsman’s jurisdiction.

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Agreed action

34. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Mrs M and B, we may recommend the Council makes a symbolic payment.
35. Fault by Barnsley meant the Council failed to properly consider Mrs M’s request for a place in the integrated resource. The Council’s actions created reasonable expectations for both Sheffield and Mrs M that B would have a place in the integrated resource.
36. Regrettably, I cannot say what the outcome would have been if the fault had not occurred, since there were more applications than places available in the integrated resource, and I cannot on balance say whether B would have secured a place. Had the Council sent a negative response to the consultation and Sheffield decided not to name the school, Mrs M could have appealed to the SEND Tribunal straight away.
37. Barnsley has since written to Mrs M to offer its apologies. The Council said it was “not clear” in its response to Sheffield and acknowledged this may have “caused confusion”. However, the Council noted this came to light before the statutory deadline for issuing B’s Plan. The Council offered Mrs M a payment of £300 for her time and trouble pursuing her complaint. The Council assured Mrs M that processes had been “refreshed” and staff were aware of the protocol to ensure there was not a repeat of the problem.
38. I welcome Barnsley’s acknowledgment that Mrs M has a valid complaint, and its offer of a symbolic payment to recognise her time and trouble pursuing it.
39. However, I do not agree this is a case where a lack of clarity caused only confusion. Further, I do not consider the fact matters came to light before the statutory deadline is relevant. I consider Barnsley’s failure to follow its procedures created a situation where Mrs M reasonably expected a place for B at the integrated resource which Barnsley has been unable to fulfil. That is a significant injustice. And even though I cannot consider subsequent developments because of Mrs M’s appeal to the SEND Tribunal, I consider the Council should offer a symbolic payment to recognise this original injustice.
40. Barnsley did not acknowledge its mistake, and the impact on B, when Mrs M first complained. It was not until I made my enquiries that the Council acknowledged what had gone wrong and offered its apologies. This delay has created additional frustration for Mrs M.
41. I recommended the Council:
1. makes a further apology which acknowledges the faults I have identified here and the impact on Mrs M and B; and
2. offers a further symbolic payment of £500 to recognise the impact on Mrs M and B.
42. We can also make recommendations to ensure similar faults do not happen in the future. I recommended the Council provides details of how it has changed its processes and updated staff so similar mistakes are not made in the future.
43. I recommended the Council undertakes my recommendations within six weeks of my final decision. The Council should provide us with evidence it has complied with the above actions.
44. The Council accepted my recommendations.

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Final decision

45. I have completed my investigation as the Council accepted my recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman