Summary: Ms X complained the Council named a mainstream school on her son, Y’s, Education, Health and Care Plan and ignored her request for a special school. Ms X also complained the Council’s communication with her was very poor and it delayed responding to her complaint. We found the Council delayed consulting a special school for three months and responding to Ms X’s complaint. The Council will apologise to Ms X and pay her a symbolic amount of £300 to recognise the frustration this caused her.

The complaint

1. Ms X complained the Council named a mainstream school on her son, Y’s, Education, Health and Care Plan and ignored her request for a special school. Ms X also complained the Council’s communication with her was very poor and it delayed responding to her complaint. Ms X said this caused her frustration and distress and she wanted the Council to replace its special educational needs team officers and improve its responses to people contacting the service.

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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 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)
3. 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)
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

9. Ms X complained to us in June 2024 about matters that began in October 2022. As set out in paragraph three Ms X’s complaint about what happened before June 2023 is late. I have exercised discretion to investigate matters since February 2023 as what happened in June and July 2023 stem from the Council’s actions in February 2023 and so there is good reason to investigate them now.
10. I have not investigated between October 2022 and January 2023 because these matters are late and there is no good reason to investigate them now.

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How I considered this complaint

11. I read the documents provided by Ms X.
12. I considered the documents the Council sent in response to my enquiries.
13. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation and guidance

14. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
15. Section I of the EHC Plan contains the name and/or type of educational placement the child should attend.
16. There is a right of appeal to the Tribunal against the school or placement specified in Section I.

What happened

17. Y is of primary school age. He has neuro-differences that affect his learning and speech and language. In the 2022/23 academic year Y was attending School 1, a mainstream primary school. Y’s mother, Ms X, had asked the Council to complete an assessment for an Education, Health and Care (EHC) Plan for Y. The Council had agreed to complete an assessment at the end of 2022.
18. Ms X told the Council in February 2023 that she wanted School 2, a special school, to be named in section I of Y’s EHC Plan.
19. The Council decided it would issue a Plan for Y in February. It issued a draft Plan for Ms X’s comments and said it would consult with School 2 as Ms X’s parental preference. The Council held a co-production meeting with School 1 and Ms X to discuss the draft Plan. The Council then sent a consultation to School 1 only.
20. School 1 emailed the Council and confirmed, following the discussions in the meeting, it was willing to be named in Y’s EHC Plan as the interim setting in section I. It said Ms X requested a special school (School 2) and it understood the Council was consulting with that placement. It said it would provide continuity of provision for Y in the meantime.
21. At the beginning of March the Council issued a final EHC Plan naming School 1 as the school Y should attend. It told Ms X of her appeal rights if she disagreed with the content of the Plan.
22. The Council sent a consultation to School 2 at the end of May. At the end of June School 2 offered Y a place from September 2023.
23. Ms X contacted the Council for an update in June. The records show that from June the Council kept Ms X up to date at regular intervals with the progression of the consultation and Y’s EHC Plan.
24. Ms X complained to the Council about its lack of communication since October 2022 and the lack of placement for Y at School 2.
25. The Council issued a new EHC Plan for Y in July 2023. It stated in Section I that Y should attend School 1 until the end of the academic year and School 2 from September 2023. It told Ms X of her right of appeal to the SEND Tribunal if she disagreed with the content of the Plan.
26. The Council responded to Ms X’s complaint and apologised for the delay. It said it had now agreed a place for Y at School 2 and would be issuing a Plan naming the school.
27. Ms X was dissatisfied with the Council’s response and asked it to consider her complaint at stage two in August 2023.
28. The Council responded to Ms X in January 2024. The Council apologised for the delay in responding to her complaint which was caused by high caseloads and offered her £100 for the distress this caused. It said the delay in arranging the change of placement for Y was caused by staff illness and staffing pressures.
29. Dissatisfied with the Council’s response Ms X complained to us in June 2024.
30. In response to my enquiries the Council said its SEND team had experienced several vacancies which impacted on the capacity of senior managers to investigate and respond to complaints.

My findings

31. As set out in paragraph four, we cannot normally investigate where someone has a right of appeal to a tribunal about the same matter. The Council issued an EHC Plan for Y in February which named School 1. Ms X had an appeal right to the SEND Tribunal if she disagreed with the content of the Plan. However, the email from School 1 to the Council after the co-production meeting shows there was an understanding that School 1 would be named in the interim whilst the Council consulted with School 2. It was not reasonable for Ms X to appeal to the SEND Tribunal as she believed the Council was taking action to name the parental preference school. Therefore I have investigated what happened after February 2023.
32. The Council said it would consult School 2 for a place for Y in February 2023, it did not do so until the end of May which was a delay of three months and was fault. The Council states the delay was caused due to staff sickness. Regardless of the cause the delay caused Ms X frustration.
33. I do not find the delay caused an injustice to Y. This is because School 1 was named in the EHC Plan issued in February 2023 and was clear it would provide continuity of the provision for Y. Therefore, on the balance of probabilities Y received the specialist educational provision set out in his EHC Plan.
34. Ms X complained about the Council’s communication with her. The records show the Council’s communication with Ms X in February was good, and in June when she raised concerns it kept her updated regularly until it issued the new EHC Plan. The Council did not contact Ms X between February and June as there was no update to provide. There was no fault in the Council’s actions beyond what has already been identified in paragraph 32.
35. The Council’s response to Ms X’s stage one complaint did not address all the issues she had raised. It did not answer her complaint about its poor communication. The Council then took five months to respond to Ms X at stage two which is a significant delay. Both matters are fault and caused Ms X frustration.
36. In response to a separate Ombudsman investigation the Council provided us with its SEND improvement plan in September 2024. The SEND improvement plan includes how the service is improving its complaint handling. Therefore I have not made a further service improvement recommendation on the same point in this case. We will continue to monitor the Council’s complaint handling through our casework.

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Agreed action

37. Within one month of this decision the Council will:
1. Write to Ms X and apologise for the frustration caused to her by it delaying three months in consulting School 2. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology; and
2. Pay Ms X a symbolic amount of £200 to recognise the frustration she was caused by the Council’s delay in consulting with School 2 and its poor complaint handling. This is in addition to the £100 it has already offered her.
38. The Council will provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation. I found fault causing injustice and the Council has agreed to my recommendation to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman