Summary: Miss X complained about significant delays in the education, health and care plan process. She said the Council failed to adhere to statutory timescales and said the Council’s communication has been poor. We find the Council was at fault. This caused significant distress to Miss X. To address this injustice caused by fault the Council has agreed to make several recommendations.

The complaint

1. The complainant, Miss X, complains about significant delays in the education, health and care plan process. She said:
• the Council failed to adhere to the statutory timescales; and
• the Council’s communication has been poor.
2. Miss X said this has caused her and her family significant distress.

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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 Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
8. 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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What I have and have not investigated

9. I have investigated the Council’s actions between January and July 2023 when the final plan was issued.
10. I have not investigated the Council's actions after the plan was finalised in July 2023 regarding school placements. This is because Miss X appealed to the Tribunal in September 2023. As stated in paragraph 22, the period we cannot investigate starts from the date the appealable decision is made.

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How I considered this complaint

11. I spoke with Miss X about her complaint. I considered all the information provided by Miss X and the Council.
12. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

EHC Plan

13. 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. 

Reviewing EHC Plans

14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
15. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
16. The SEN code states councils can require specific schools to convene and hold the review on behalf of the Council.

Alternative provision

17. 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.
18. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
19. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

Law and guidance

20. 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)
21. 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.
22. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

Summary of the key events

23. Miss X’s son, B, has an EHC Plan. An annual review was held by the school in January 2023. It was noted the school agreed with Miss X that B’s needs and development would be better supported in a specialist setting.
24. Miss X asked the Council for an update on the review in March 2023. But the Council said it had not received the report from the school and therefore could not progress it further. It asked the school to send the report.
25. The Council contacted Miss X early May 2023. It said it was working on the annual review and wanted to arrange a call to clarify some points around Miss X’s request for a specialist setting.
26. Miss X contacted the Council the following month. She said since the Council’s email in May 2023, she had sent many emails which had not been responded to. She said the Council had still not made a decision from the review. She asked for details of senior management and details of how to make a complaint.
27. Miss X continued to chase the Council for a response in June 2023.
28. On 26 June 2023 the Council told Miss X the previous case officer had not progressed the case. It said it would be making amendments to the EHC Plan.
29. B’s school contacted the Council on the same day. They said both parents and the school were at crisis point as the school could not meet B’s needs. The school asked if they and B’s parents could have an update on whether the Council would be considering a placement panel.
30. In early July 2023, Miss X told the Council the school was proposing to offer B only part-time education from next week. This was because the school could not meet his needs. It was noted Miss X did not support the proposed reduction.
31. The Council issued its decision to amend the EHC Plan letter on 6 July 2023 and sent Miss X a copy of the draft EHC Plan.
32. The Council contacted the school in the same month. It said it was unlikely a new school placement would be found for September. It noted it should be looking for a specialist school place and asked the school to contact Miss X’s school preference to see if they could offer some support.
33. The Council also told the school an option for them would be for the school to source alternative provision.
34. In response, the school said they had looked into alternative provision and another organisation. But both stated they were not the correct provision for B. The school said they were struggling to identify which alternative provision would be appropriate and asked the Council what the next steps would be.
35. The Council told the school it was looking for a specialist placement but stated the school needed to make provision in the interim.
36. Miss X asked the Council for an explanation of the process.
37. The Council finalised the EHC Plan on 27 July 2023. It named B’s current mainstream school.
38. As requested by Miss X, the Council sent her a list of consultation responses from three schools.
39. Mrs X lodged an appeal to the Tribunal in September 2023. This was regarding section I of the plan.
40. A further review of B’s EHC Plan was held in November 2023. It was noted B was on a part-time timetable as the school could not meet his needs.

Complaint to the Council

41. In Miss X’s complaint, she said:
• there had been a delay between the annual review in January 2023 and the Council’s decision to amend letter which was issued in July 2023;
• her emails had been ignored; and
• the final EHC Plan named an unsuitable school.
42. In response the Council said:
• the case officer left on 12 May 2023. It apologised for not communicating this to her but said due to the volume of cases, it was not possible to contact parents individually;
• its casework team in the SEN department have a significantly larger caseload then nationally expected. It said it has agreed to additional recruitment;
• the school did not send it the review report until the 14 March 2023 which meant the Council did not respond within the statutory timescales. It apologised and said it was working with school to improve their understanding of their duties in relation to this process; and
• many specialist schools are full at this time of year as they are mostly filled in February.

Analysis- was there fault by the Council causing injustice?

43. The SEN code states councils can require certain school to convene and hold the annual reviews on behalf of the Council. In this case the school held the review on the 25 January 2023.
44. The guidance states the Council’s decision following the review must be notified to parents within four weeks of the review meeting. In this case the Council issued its decision letter on the 6 July 2023. Therefore, there is a significant delay. This is fault. This caused significant distress to Miss X who spent time and trouble contacting the Council. This also delayed B’s EHC Plan being amended.
45. We recognise that the school did not send the review report to the Council until the 14 March 2023. But the Council did not chase the school for the report until the 10 March 2023. We would have expected the Council to have chased this up sooner. Where councils arrange for schools to carry out their functions on their behalf, the Council remains responsible. Once the Council did receive the report, the Council took a further 16 weeks to issue the decision to amend the EHC Plan letter.
46. The Council stated the case officer left on the 12 May 2023. It was noted in June 2023, that the case had not been progressed. This is fault. This caused further significant distress to Miss X. The lack of progress would have also impacted the timeline of finding B a new school placement.
47. The school told the Council they were at crisis point on 26 June 2023 as they could not meet B’s needs. In the following month it was noted the school had tried to source alternative provisions but had not been successful. The Council told the school they needed to make provision for B whilst it consulted with specialist placements.
48. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. In this case the Council said it became aware the school was not suitable in January 2023 from the review report. It said the school was provided with additional top-up funding to support B in school and it was expected this funding would make the placement accessible. This is a decision for the Council to take.
49. But after the school continued to raise further concerns in June 2023, I have seen no evidence to suggest the Council further considered whether the provision was available and accessible to B. This is fault. This caused significant distress to Miss X and B went without suitable provision.

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Agreed action

50. To address the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• write to Miss X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
• pay Miss X £500 for the educational benefit of B, to recognise the impact of its failings on B’s education. This is from the period between the 26 June 2023 when the school told the Council it was at crisis point, to the 27 July 2023 when the final plan was issued. In determining this figure, I have taken into account that whilst B did attend mainstream school, the Council had agreed a specialist placement was needed; and
• pay Miss X £500 for the avoidable distress, time and trouble caused by the Council’s actions.
51. Within three months the Council should review its process for monitoring review reports sent by schools. The Council should ensure this process considers its duty to issue a decision to parents within four weeks of the review.
52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

53. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman