Summary: Ms X complains the Council has failed to properly communicate with her about her child’s education and provision in her Education, Health and Care Plans and it has failed to provide her with a suitable education. The Council is at fault and this caused injustice. The Council has agreed to our recommendations to provide an adequate remedy for the loss of education caused by delays in providing additional funding and avoidable distress.

The complaint

1. The complainant, Ms X, complains the Council named a school in her child’s Education, Health and Care Plan that was unable to meet her needs. Ms X also complains about the Council’s lack of communication with her about her child’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 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 complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
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. 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)
7. 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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How I considered this complaint

8. I considered Ms X’s complaint and the information she provided.
9. I considered the information I received from the Council in response to my enquiries.
10. Ms X and the Council were given the opportunity to comment on a draft decision and a revised draft decision. I have considered the comments I have received from Ms X and the Council before making this final decision.

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What I found

Relevant law and guidance

Education, Health and Care (EHC) Plans

11. 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 education (section F) or name a different school (section I). Only the SEND Tribunal or the council can do this.
12. The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance.
13. 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. A review meeting must take place.
14. Within four weeks of the review meeting the council should tell the child’s parent if it intends to amend, maintain or cease the EHC Plan. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes within four weeks of the review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). 
15. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the SEND Tribunal.
16. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.
17. There is a right of appeal to the Tribunal against:
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan; and
• a decision not to amend an EHC Plan following a review or reassessment.

Provision

18. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
19. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

What happened

20. Ms X, has a child, Y, who has an Education, Health and Care (EHC) Plan maintained by the Council. In December 2022, Y was attending mainstream school, School 1, and she was in Year 10.
21. In March 2023 an annual review of Y’s EHC Plan was held. In April 2023 the Council informed Ms X it had decided there would be no changes to the Plan. Ms X told the Council she was surprised the EHC Plan was to remain the same when School 1 had said they were unable to meet Y’s needs and it had agreed changes to the Plan in the annual review meeting in March 2023. A senior caseworker advised Ms X that she would make the changes to the Plan and present it to the Council’s Panel.
22. An amended plan was drafted and the case was presented to the Panel to consider a change of placement. The Panel decided to consult with parental preference of school, School 2, and ask School 1 to look at alternative provision to support reintegration.
23. A consultation was sent to School 2 on 30 May 2023. School 2 responded on 7 June 2023 and said they do not accept Year 11 placements and the oldest they take for September would be Year 10.
24. In September 2023, Ms X complained to the Council about the lack of communication she was receiving from the Council with regards to Y’s education. Also in September, Ms X contacted the Council to request a final EHC Plan for Y. Ms X was advised that Y’s EHC Plan was at draft stage and needed to be finalised, but this had not happened yet.
25. In October 2023, the Council sent its Stage 1 response to Ms X and it upheld her complaints. It apologised for the delay in sending its response and it apologised for the shortfall in communication. The Council said it had identified and implemented several measures to improve communication with parents.
26. The Council said a review was scheduled for November 2023 where Y’s EHC Plan, current placement, provision and Year 12 placement would be discussed.
27. Ms X was unhappy with the Council’s response and escalated her complaint to Stage 2 of the Council’s complaints process.
28. In November 2023, the Council met with Ms X and following this meeting it said ‘it was clear that funding for the additional support from School 1 should be considered’. Additional funding for extra support at school was put in place following this meeting.
29. The Council sent its Stage 2 response to Ms X and upheld her complaints again. It said the communication it sent to her in April 2023 was the final EHC Plan and it apologised for telling Ms X the Plan had not been finalised and the confusion this caused. The Council also apologised for not telling Ms X the decisions the Panel were making about Y’s education.
30. Ms X brought her complaint to the Ombudsman at the end of November 2023.
31. In December 2023 the Council issued an amended draft plan. A final amended plan was issued in March 2024 and Ms X was provided with her appeal rights.
32. On 25 July 2024 the Council issued another final amended plan naming a college as the suitable placement for Y. If Ms X is unhappy with this Plan, she has the right to appeal the contents and/or placement to the SEND Tribunal.

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Analysis

Y’s school placement

33. The Council was aware in December 2022 that School 1 were struggling to meet Y’s needs. This was also discussed at further meetings in January 2023 and March 2023. Yet the Council continued to advise Ms X that Y should remain at School 1.
34. In April 2023 the Council decided Y’s placement at School 1 should continue but a reintegration plan and alternative provision should be provided. The Council says the alternative provision was to support the reintegration plan and ensure a suitable education was being provided whilst this process was ongoing. The Council’s decision for a reintegration plan caused confusion because Y was still attending school. Ms X has advised me she has not seen any reintegration plans or attended any reintegration meetings.
35. The Council did not approve additional funding for School 1 to meet Y’s needs until November 2023. I have not seen any new information the Council had in November 2023 to approve additional funding that it did not have before. The additional funding for School 1 could have been arranged in June 2023 when School 2 said it could not offer Y a place or at the very latest, September 2023, for Y’s start in Year 11.
36. The Council’s delay in making a decision about Y’s education is fault. It did not have to wait for an annual review of Y’s EHC Plan to ensure she was receiving a suitable education. The Council should have acted quickly to investigate and act on Ms X’s complaints and concerns she raised in December 2022.

Review of Y’s EHC Plan in March 2023

37. The Council issued its decision to keep Y’s EHC Plan unchanged within statutory timescales but on the same day it agreed to make the amendments that were agreed in the annual review and put a draft plan before the Council’s Panel. The Council says this demonstrates it was responsive to the family’s concerns and acted accordingly but the changes were discussed at the annual review meeting that took place before the Council issued its decision. The purpose of the annual review process is to gather the views of the parent and child before making its decision, not after.
38. The Council has acknowledged it issued its decision to maintain the EHC Plan within statutory timescales. The Council’s decision to keep the plan unchanged is flawed and it demonstrates the Council’s focus on meeting statutory deadlines rather than the outcomes for Y. There is no good reason, apart from meeting the statutory deadline, for the Council to issue a decision not to amend Y’s Plan to then, on the same day or soon after, decide to make amendments to the Plan.
39. The Council’s actions coupled with the lack of communication, caused Ms X to be confused about the final EHC Plan and her appeal rights. This is why I have used my discretion to investigate this aspect of Ms X’s complaint because I consider it was reasonable not to expect Ms X to appeal the decision from April 2023 to the SEND Tribunal because she was under the impression the Plan had not been finalised and was still in the process of being amended.
40. The Council’s actions frustrated Ms X’s appeal rights as she had 2 months from April 2023 to lodge her appeal to the SEND Tribunal. This lost opportunity could have addressed the ongoing issues with Y’s education.

Review of Y’s EHC Plan in November 2023

41. The Council said it would review Y’s EHC Plan, current placement, provision and Year 12 placement in November 2023. Following the review, the Council drafted an amended EHC Plan. The Council issued a final EHC Plan two months later than it should have. This is fault.
42. Due to the delay, Y did not have the most up to date EHC Plan in place therefore she was not receiving the provision suited to her needs for at least two months. There was further uncertainty about her Year 12/Sixth Form placement that she is due to start in September 2024 because the Council did not agree a placement until July 2024. The fault also delayed Miss X’s appeal rights to the SEND Tribunal.

Council’s communication with Ms X

43. Y’s case was sent to the Council’s Panel on at least two occasions and on both occasions, Ms X was not informed Y’s education was scheduled to be discussed at the meetings and she was not informed of the outcomes. This is fault.
44. The Council’s lack of communication with Ms X caused uncertainty about what it was doing about Y’s education. As a result of this uncertainty, Ms X arranged Math and English tuition for Y because the Council did not act quickly upon her concerns that Y was struggling in these lessons and the school did not have the resources to support her further.
45. The lack of communication meant Ms X went to significant time and trouble chasing various council officers who worked in the SEND Department. This also caused a great deal of frustration.
46. I made recommendations to remedy the injustice to Ms X and Y but I did not recommend any service improvements because I found fault with the Council on its communication with parents in a recent investigation where it agreed to make service improvements. The Council is still in the process of improving the service it delivers to parents. The Council has advised me the SEND Service has improved its practice by implementing a 5 working day turnaround for notifying families about case decisions following SEND Panel.

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Agreed action

47. To remedy the injustice caused by the identified faults, the Council has agreed that within four weeks of this final decision, it will:
• Apologise in writing to Ms X and Y for the failures identified above;
• Pays Ms X £1000 for the term where there was a loss of provision;
• Pay Ms X £200 to recognise the frustration and uncertainty caused by the delay in issuing Y’s final EHC Plan;
• Pay Ms X £500 for the avoidable distress.
48. The Council will provide us with evidence it has complied with the above actions.

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Final decision

There is fault by the Council that caused injustice to Ms X and to Y. The Council has agreed to our recommendations to adequately remedy the injustice. Therefore, I have completed my investigation and closed this complaint.

Investigator’s final draft decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman