Summary: Mrs X complains about the Council not sending her a copy of her child’s education, health and care plan and not providing her child with a suitable education. The Council is at fault for failing to ensure a suitable education was being provided to Mrs X’s child and for not communicating with her effectively about her child’s plan. The Council has agreed to remedy the injustice caused by the fault.

The complaint

1. The complainant, Mrs X, complains the Council failed to send a copy of her child’s final education, health and care plan and the corresponding notification of appeal rights. Mrs X also complains the Council failed to provide her child with the provision in her education, health and care plan.

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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. 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)
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 SEND 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)

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How I considered this complaint

6. I considered Mrs X’s complaint and the information she provided.
7. I considered the information I received from the Council in response to my enquiries.
8. Mrs X and the Council were given the opportunity to comment on a draft of this decision. I considered the comments I received before making this final decision.

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What I found

Relevant law and guidance

Education, Health and Care plan (EHC) plan

9. Children with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to secure special educational provision in an EHC plan. (Children and Families Act 2014, Section 42)
10. The Council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable.

EHC needs assessments

11. Statutory guidance ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC plans. The Code is based on the Children and Families Act 2014 and the SEND Regulations 2014.
12. 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. The appeal can be 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.
13. We cannot direct changes to the sections about the child’s special educational needs, special educational provision, or name a different school. Only the tribunal can do this.
14. 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)

General section 19 duty

15. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

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What happened

16. In June 2022, Mrs X requested an Education, Health and Care (EHC) needs assessment for her child, Y. At the time, Y was attending a mainstream secondary school, School 1. The request for a needs assessment was declined by the Council because it was of the view that Y’s SEN could be met within School 1’s existing resources. Following mediation, in October 2022, the Council overturned its decision and agreed to carry out an EHC assessment of Y.
17. In January 2023, Mrs X sent an email to the Council for an update because she had not received a draft EHC Plan which was due by 16 December 2022. Mrs X also told the Council that Y had now been excluded from School 1 due to behavioural issues and it had told her that it could not meet Y’s needs and, in their opinion, Y needed a more specialised setting. The Council replied to the email on the same day with a draft EHC Plan for Y. It advised Mrs X that a copy had also been sent in the post.
18. The Council finalised Y’s EHC Plan on 19 January 2023. It did not name a particular setting in Section I but it specified a ‘mainstream setting’. The Council did not send an electronic copy of the final EHC Plan to Mrs X but it says it posted it to her with information on her appeal rights.
19. On 10 February 2023, Y stopped attending School 1.
20. On 15 February 2023 School 2 contacted Mrs X to offer Y a place and Mrs X accepted this place on 16 February 2023.
21. In April 2023 Mrs X complained to the Council that she had not heard from it since she received the draft EHC Plan in January 2023. Mrs X advised the Council that Y had been out of education since 10 February 2023 and the lack of communication she had received from the Council was concerning her as she did not want Y to miss out on the place at School 2.
22. The Council responded to Mrs X’s complaint in May 2023. It did not uphold her complaints. The Council said:
• Y’s EHC Plan was finalised on 19 January 2023;
• Y was on roll at School 1 and they are responsible for providing Y’s education or an alternative plan if she is struggling in school;
• 7 consultations were made and only School 2 offered Y a place;
• The Panel decided on 4 April 2023 that School 2 would not be the most appropriate setting to meet Y’s needs;
• The Panel advised School 1 to explore an alternative provision placement at a Pupil Referral Unit (PRU); and
• It had given Mrs X the information to appeal the final EHC Plan when it issued the final plan but the two-month deadline to appeal had now passed.
23. The Council also said it had consulted with School 1 and it had responded to say it was unable to meet Y’s needs in her EHC Plan.
24. In June 2023, Mrs X requested that her complaint be escalated to Stage 2 of the Council’s complaint procedure. She said that she had not received a final EHC Plan for Y, she was not informed of the Panel’s decision to refuse School 2’s offer, as of 9 June 2023 School 1 had not made a referral to a PRU, the responsibility of Y’s education lies with the Council not School 1, Y cannot access online learning due to her SEN and she requested a copy of Y’s final EHC Plan via email. Mrs X also said that the Stage 1 complaint response was dated 11 May 2023 but she did not receive it until 24 May 2023 via email.
25. The Council responded to Mrs X’s complaint at Stage 2 in July 2023. It said the Council’s post team had posted the final EHC Plan on 19 January 2023 and it was sorry she had not received it. It said it would send a Proposed Amended EHC Plan to her shortly. The Council said it had not received Mrs X’s amendments to the plan until the day before it was issued and the email was not seen until after the plan was issued. The Council told Mrs X there is set legislation around timescales stating that the final EHC Plan should be issued 15 days after the draft.
26. The Council said it had secured a place for Y at a PRU on 17 July 2023. The Council said it partially upheld her complaints and it apologised for the delay in sourcing and securing a setting for Y.

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Analysis

Y’s EHC Plan

27. The Council says it issued Y’s final EHC Plan on 19 January 2023. Mrs X complains that she did not receive the final EHC Plan. The evidence shows Y’s EHC Plan was finalised by the Council on 19 January 2023 and the records show the instruction to print and post the EHC Plan was completed on the same day. In addition to this, there is evidence of Mrs X contacting the Council on 15 February 2023 about the communication she received on 19 January 2023 about the EHC Plan being sent to schools for consultations. For these reasons, I consider the Council did send the final EHC Plan on 19 January 2023 to Mrs X and I do not find fault with the Council on this aspect of Mrs X’s complaint.
28. When Mrs X complained to the Council in April 2023 to say that she had not heard from the Council and she only had a draft EHC Plan, the Council advised her a final EHC Plan had been issued in January 2023. When escalating her complaint to Stage 2, Mrs X advised the Council she had not received a final EHC Plan or information on her appeal rights. The Council failed to act upon this appropriately by sending Mrs X a copy of Y’s final EHC Plan. This failure is fault.
29. I have concerns about the wording the Council used in its covering letter that accompanied the final EHC Plan. The Council said that once a placement for Y had been secured it would then issue a ‘2nd final EHC Plan’. This phrase is confusing as it suggests the plan it issued on 19 January 2023 was not a final plan, but that a final plan was pending. I consider that it was the reference to a ‘2nd final EHC Plan’ once a placement has been secured is what led Mrs X to believe Y’s EHC Plan had not yet been finalised.
30. Councils must give parents 15 days to give their views on the draft and must make officers available for a meeting on request to discuss the content of the draft EHC Plan. The Council sent the draft plan to Mrs X on 4 January 2023, Mrs X submitted changes on 18 January 2023 and the Council issued the final plan on 19 January 2023. The Council said it had received Mrs X’s amendments but it had not seen the email until after the EHC Plan had been issued. The Council is at fault for failing to consider Mrs X’s amendments when they were received within 15 calendar days.
31. The Council failing to consider Mrs X’s amendments, issuing a final EHC Plan on the final day of the statutory deadline without naming a setting and advising Mrs X a ‘2nd final EHC Plan’ would be issued once a placement was secured demonstrates the Council focuses heavily on meeting the statutory deadlines. In responding to Mrs X’s complaint about not including her amendments to the final Plan, the Council said in July 2023 that its intention was to include the amendments now that it had sourced a place. By issuing the EHC Plan on 19 January 2023, the Council can say it met the statutory deadline but it does not appear to serve any other purpose. It did not help Mrs X or Y. There is nothing unlawful about the Council’s approach but it is not in keeping with the spirit of the Code. Local authorities should enable parents to share their knowledge about their child and give them confidence that their views and contributions are valued and will be acted upon (paragraph 1.7, the Code).
32. The Code states the statutory time limits are the maximum time allowed. Local authorities should ensure they have planned sufficient time for each step of the process, so that wherever possible, any issues or disagreements can be resolved within the statutory timescales. In Y’s case, the Council failed to ensure they had planned sufficient time for each step of the process.

Alternative education

33. Y was out of school from 10 February 2023 to 21 July 2023. The Council has a duty under the Education Act 1996 (Section 19) to provide suitable educational provision for children of compulsory school age who are absent because of illness, permanent exclusion, or who are ‘otherwise’ unable to attend school. The legal test, as determined by caselaw, says the Council must provide education that is reasonably available and accessible to the child.
34. The evidence shows the Council was aware since December 2022 that School 1 was unable to meet Y’s needs and it had notified the Council that it was unable to provide the provision in her EHC Plan. The Council should have acted sooner in making a decision on whether the school place remained available and accessible to Y. The Council did not arrange any alternative provision and Y went without an education from 1 February 2023 to 21 July 2023.
35. The Council’s Panel discussed Y’s education on 4 April 2023 where it advised School 1 to explore alternative provision at a PRU. Mrs X was notified the matter was up for discussion by the Panel but she was not notified of the decision. This is fault. Mrs X was told the Council’s Panel had refused School 2 and had advised School 1 to arrange a place at a PRU in a response to her Stage 1 complaint. Mrs X should have been notified of this decision and she should have been made aware of the decisions the Council were making regarding her child’s education.
36. There was a delay in making a referral to a to PRU and a place there was not approved until 17 July 2023. This is also fault.
37. The Council has a duty to ensure the provision as set out in a child’s EHC Plan is being delivered to the child. The Council failed to do this and Y was without educational provision from 10 February 2023 to 21 July 2023. I have not seen any evidence the Council arranged alternative provision for Y whilst it found a suitable place. This is fault.
38. In response to my enquiries, the Council said it accepted Y did not receive a suitable education between 1 May 2023 and 21 July 2023 and it proposed a remedy. I have taken this proposed remedy into consideration in my recommendations below.

The injustice to Mrs X and to Y

39. Mrs X has felt ignored and frustrated by the Council’s actions. The communication she did receive from the Council was confusing and this exacerbated the frustration. There was period of uncertainty when the Council confusingly issued what it called a final EHC Plan with a note to say the ‘2nd Final EHC Plan’ was on its way once a setting had been secured. To Mrs X, the Council prioritised its own needs over Y’s needs by using its power to issue a EHC Plan which named a type of school simply to meet a deadline. The issuing of the final plan in January 2023 served no other purpose.
40. The Council did not communicate decisions it was making on Y’s education and it failed to provide Y with an education that was accessible and suitable from February 2023 to July 2023.
41. Along with the Council’s remedy offer, I have also taken into consideration the impact on Y, her SEN and her circumstances, including her vulnerabilities, when formulating an appropriate remedy. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. 

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Agreed action

42. To remedy the injustice caused by the identified faults, the Council has agreed that within four weeks of this decision, it will:
• Apologise to Mrs X and to Y for the identified faults;
• Pay Mrs X £300 in recognition of the distress to her and the time and trouble she was put to when there was no provision and the Council did not communicate with her properly; and
• Pay Mrs X £1200 to be used for the benefit of Y to recognise the loss of provision for the Summer term in 2023.
43. The Council will provide us with evidence it has complied with the above actions.

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Final decision

44. The Council is at fault and it has agreed to remedy the injustice caused by those faults. Therefore, I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman