Summary: There was fault by the Council. It took too long to complete a consultation of schools and to consider an EOTAS package that might meet a child’s special educational needs. It also failed to follow the process to amend the Education Health and Care (EHC) Plan without a review. Ms B’s son was without proper educational provision in accordance with his EHC Plan. This impacted on him and caused the family distress.

The complaint

1. Ms B complains that the Council:
• refused to name Ms B’s preferred setting on her son’s EHC Plan, and has refused her request for an alternative education;
• took too long to take this matter to its panel; and
• failed to provide a suitable education for her son while this was being resolved.
2. Ms B says that as a result of the Council’s failings, her son has missed education. The family has been distressed and have had to pay for reports to support the EHC Plan because it was wrong. Ms B also says that she has not been able to increase her working hours as her son is not in school.

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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. 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)
5. 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

The period from September 2022 to June 2023

6. 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)
7. 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. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.
8. Ms B had the right to appeal against the first EHC Plan the Council issued in November 2022. However, the Council did not name a school or what type of educational setting her son would attend. Ms B had spoken to the Council about her son attending a specialist nursery and she thought the Council would find a suitable place and the provision of the Plan would be delivered. And so I have decided that it was not reasonable to expect Ms B to appeal this first Plan. I have investigated Ms B’s complaints about what happened when her son was unable to attend school.

The period from June 2023 to date

9. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
10. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
11. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
12. Ms B appealed the EHC Plan the Council issued on 30 June 2023, on the grounds that she did not agree with the school named or the provision set out in the Plan. I cannot investigate the reasons why Ms B’s son has been out of school, nor any other educational provision, from 30 June to date, because these matters are connected to the grounds of Ms B’s appeal.
13. I also cannot investigate whether it was necessary for Ms B to arrange and pay for other reports to support her appeal against the EHC Plan. Again, this is part of the appeal to the Tribunal and it can consider what reports are, or were, necessary.

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How I considered this complaint

14. I considered the information provided by Ms B and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken account of all comments received before issuing his final decision.

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What I found

The law and guidance

15. A child with special educational needs may have an Education, Health and Care (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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
16. When a council sends a draft plan to a child’s parent or young person it must give them at least 15 days, beginning with the day on which the draft plan was served, in which to: 
• make representations about the content of the draft plan, and to ask that a particular school or other institution be named in the plan; and 
• require the council to arrange a meeting between them and an officer of the council at which the draft plan can be discussed. (Special Educational Needs and Disability Regulations 2014) 
17. Paragraphs 9.193 to 9.198 of The Special Educational Needs and Disability Code of Practice, January 2015 (‘The Code’), allow the Council to amend a final EHC Plan without a full review or reassessment, where this is not necessary. The Code says the Council must send the parent a copy of the existing EHC Plan, and a notice with details of the proposed amendments. The parent has 15 days to comment on the proposed changes, including requesting a particular school be named in the Plan.

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What happened

18. Ms B’s son, X has special educational needs. In August 2022, the Council agreed to assess X for an EHC Plan. He was aged four years old and started a primary school in September 2022. Ms B says that there was a safeguarding incident at the school and it confirmed to her that it could not meet X’s needs. In any case, Ms B withdrew her son from that school, at the end of September as she was concerned it could not meet his needs. X remained on the roll of the primary school, however. The Council said that the school stayed in contact with Ms B, completing safeguarding and welfare checks.
19. Ms B asked the Council to name a specialist private nursery school on the Plan. The Council issued the final EHC Plan. It did not name a school on the Plan but said that Ms B had decided to send her son to a specialist nursery. The Council consulted the nursery and two primary schools (including the school Ms B had withdrawn X from) on whether they could meet X’s needs.
20. X turned five years old in February and so had reached compulsory school age. The Council now had a duty to ensure he had a full-time education. The Council told Ms B that it would not fund the special provision at the private nursery because it was not registered as an educational setting. The Council consulted other schools including Ms B’s preferred special school. Ms B asked the Council about Education Otherwise than at School (EOTAS). She also notified the Council that she was paying for private play therapy and this should be in X’s EHC Plan.
21. The Council submitted the case to its funding panel at the end of April. The Panel agreed that X needed a special school but the panel did not have enough information to decide what kind of provision would be most suitable.
22. At the end of May the Council explained to Ms B that she would need to give more details about what she thinks should be included in an EOTAS package and the Council could then prepare this to go to the Panel for approval. Ms B responded at the beginning of June with details of what X needed from an EOTAS package.
23. Ms B complained to the Council that her son was not receiving the special provision set out in his EHC Plan. The Council took too long to respond to the complaint. It acknowledged this and also said:
• Ms B wants her son to attend a specialist nursery while she waits for a place at her preferred special school to become available. However, the Council could not place the son here or name this setting on the EHC Plan because it is not an educational setting, and the child was not at compulsory school age until February.
• The Council was supposed to take the case to its provision panel in February but this did not happen.
• The Council consulted special schools in January and March. The Council acknowledged that it did not maintain oversight when one of the schools did not respond to consultation and it needs to do this to take the case to its panel.
• The Council has reviewed its service. It has restructured the Special Educational Needs service and is retraining staff and recruiting more staff.
• Ms B withdrew her son from school but the Council would have expected the school to keep trying to meet his needs. The Council explained that its legal responsibility to provide an education only started when the child turned five years old. However the Council acknowledged that it should have named a school on his EHC Plan and it was wrong when it failed to do so.
• The Council said it understands that Ms B is concerned that mainstream school is not right for her son, but the Council can support a school to meet his needs.
• It apologised that Ms B had trouble contacting the Council about this.
24. Ms B was not satisfied with the Council’s response. She said it did not remedy the impact of the Council’s delays. Her son had lost a year of education and she had not been able to work as a result.
25. Ms B also complained that she had asked for EOTAS and the Council said that it would consider this and it would have to go to its panel. The Council issued an amended final EHC Plan at the end of June 2023. This named the mainstream school that Ms B had withdrawn her son from. Ms B has appealed against this.
26. The Council responded to Ms B’s stage two complaint. It said:
• The consultation process was not fluid. It waited for responses and should have requested observations from the schools to determine what sort of provision X needed.
• It acknowledged that it had delayed in providing a suitable programme of support for X while he was not in school. The Council offered to pay Ms B £2,100 in recognition of the missed education from the beginning of October to the end of the academic year of 2023; a period of 35 weeks. The Council also offered Ms B £200 in recognition of the time and trouble it put her to in pursuing it.

Analysis

27. The Council has acknowledged that:
• it was wrong when it failed to name the primary school in the EHC Plan it issued in November 2022;
• it should have handled the consultation process with schools better once X had reached school age.
• it did not provide a suitable education to X in line with his EHC Plan while he was not in school; and
• it caused Ms B time and trouble when it did not respond to her contact in good time.
28. The Council issued a final EHC Plan in June 2023. This was an amendment of the original Plan and in this the Council named the primary school X should attend. However, the Council did not follow the process to amend the Plan set out in the Code. Instead the Council issued a final EHC plan without first notifying Ms B of the proposed changes, nor giving her the opportunity to comment on these. This was further fault by the Council.
29. The Council’s shortcomings caused X to miss out on education. It has caused Ms B distress and frustration and put her to additional time and trouble pursuing matters with the Council.

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Agreed Remedy

30. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
31. The Council has offered to pay Ms B £2,100 in recognition of the impact on X of the missed provision, and £200 in recognition of the extra time and trouble Ms B was put to when the Council failed to communicate properly with her. I have proposed this is increased slightly in line with the Ombudsman’s guidance on remedies. The Council agreed to my proposed remedy.
32. The Council will within one month of the date of this decision:
• Apologise to Ms B. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay to Ms B £2,600 in respect of the impact on her and X of missing educational provision from beginning of October to the end of June 2023.
• Pay to Ms B £200 in in recognition of the extra time and trouble Ms B was put to when the Council failed to communicate properly with her.
• Share this decision with staff and remind them that the Council has a duty to:
1. follow the Code when it amends an EHC Plan without a review; and
2. retain an oversight of the education of children not in school to ensure that it meets its legal duties.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I have completed my investigation. There was fault by the Council causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman