• The complaint
• The Ombudsman’s role and powers
• What I have and have not investigated
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Miss C complained the Council was slow to identify a different school for her child, and amend their Education, Health and Care Plan after agreeing to do so. We upheld the complaint, finding the Council delayed taking these actions for over twelve months. During this time Miss C experienced distress and her child could not receive a full-time education. The Council has accepted these findings and at the end of this statement, we set out the action it has agreed to take to remedy this injustice and improve its services.

The complaint

1. I have called the complainant ‘Miss C’. Her complaint concerns the special educational needs provision made for her child ‘D’ over several years. In particular, she complains the Council was slow to identify a different school for D to attend after agreeing to do so in November 2022. Something, which at the same time required the Council to amend D’s Education, Health and Care (EHC) Plan.
2. Miss C says as a result D experienced avoidable disruption to their education, including being on a part-time timetable at their previous school. It also impacted negatively on their mental health. Miss C says this will make it much harder for D to re-integrate to a new education setting. Miss C also gave up her employment to be at home for D and says she has suffered her own distress because of these events.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. The law says 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)
6. The law also 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. 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.
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)
9. 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

10. I have investigated the Council’s actions since November 2022. In my findings below (under the heading ‘Ombudsman’s Jurisdiction’), I explain why I have not investigated the earlier involvement by the Council in D’s education.

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How I considered this complaint

11. Before issuing this decision statement I considered:

• Miss C’s complaint to the Ombudsman and any supporting information she provided;
• correspondence exchanged between Miss C and the Council about the matters covered by this complaint, pre-dating this investigation;
• information provided by the Council in reply to written enquiries;
• any relevant law, Government guidance, or guidance published by this office, referred to in the text below.

12. I also gave Miss C and the Council a chance to comment on a draft version of this decision statement. I took account of any comments they made before issuing this final decision.

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What I found

Key law and guidance

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 the arrangements needed to meet them.
14. 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).
15. The council must arrange for a review of the EHC Plan at least once a year to make sure it remains current. 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 completes when the council issues a decision about the review.
16. So, 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 it issues that decision, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
17. If the council decides not to amend an EHC Plan or to no longer maintain it, it must explain the right to appeal this decision to a SEND Tribunal.
18. 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. With that, is should send another notice providing details of the proposed amendments. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. The Council then has eight weeks to issue a finalised version of the Plan.

Key facts

19. D has special educational needs and the events covered by this complaint took place during the secondary phase of their education. In 2019 the Council issued D with an EHC Plan. This named their place of education as a specialist provision attached to a mainstream school.
20. There were reviews of D’s EHC Plan in December 2020 and April 2022. On both occasions the Council decided to maintain the EHC Plan without amendment.
21. In September 2022 Miss C contacted the Council because she had concerns the school could no longer meet D’s needs. The school also considered it could no longer meet D’s needs. The Council arranged what it described as a ‘mediation meeting’ in November 2022. At that, it agreed it would begin looking for an alternative education setting for D.
22. In January 2023 Miss C chased the Council to find out what action it had taken following that meeting. D’s school, in regular contact with Miss C, did the same in March 2023. The school highlighted in both that communication and later, that it did not consider D in the right setting to meet their needs.
23. In April 2023 the school arranged another review of D’s EHC Plan and sent the papers to the Council the following month. In June 2023 it again chased the Council, wanting it to act to identify an alternative school for D.
24. In November 2023 the school contacted the Council to say with regret it had placed D on a part-time timetable because their needs had increased over “recent weeks / months”. In the same month Miss C began her complaint against the Council, unhappy it was now 12 months since it promised to look for another school for D.
25. The Council replied to the complaint and apologised for its delay. It said it had appointed a new education officer to oversee D’s case. It said it would liaise with D’s school to see if it could support it more with D’s education.
26. Later that month, the Council sent Miss C an amended version of D’s EHC Plan. It began consulting alternative education settings. Initially, none said they could meet D’s needs.
27. In December 2023, the school advised the Council that it had taken D to an alternative education provider, but D would not engage with it.
28. In January 2024 Miss C escalated her complaint. She said the Council had left D “to one side with no proper education”. The Council began consulting more schools, including independent specialist education providers. At the end of the month one of these providers said it could meet D’s needs. Over the next six weeks the Council twice took D’s case to a specialist placement panel before deciding to name this education setting on their EHC Plan. During February 2024 the Council also gave its final reply to Miss C’s complaint, again apologising for the delay.
29. Having agreed to name this education setting in early March, the Council then issued a final EHC Plan naming the setting. D began attending the setting, at first on a part-time basis, at the end of the month. They began attending full-time from April 2024.

My findings

Ombudsman’s Jurisdiction

30. The term ‘jurisdiction’ refers to our legal powers to investigate complaints.
31. I have decided we have jurisdiction to investigate events from November 2022 onward. I am aware that Miss C considers D was not at the right school to meet their needs before this time. However, I consider there are two reasons we could not consider a complaint about events before this date.
32. First, any complaint about the education service provided to Miss C and D before November 2022 would be a late complaint. There are no special reasons that prevented Miss C complaining sooner that would justify us now investigating earlier events.
33. Second, Miss C also had an alternative remedy available to her if she wanted changes to D’s EHC Plan, including their named education setting. In both December 2020 and April 2022 there was a review of D’s EHC Plan. On both occasions the Council chose to maintain D’s Plan without amendment. Miss C could have appealed those decisions to the SEND Tribunal and asked it to name an alternative education setting for D. There are again no special reasons that justify us waiving our usual expectation that Miss C should have done this.

Findings on events since November 2022

34. There is no disagreement that from the beginning of the Autumn Term 2022, Miss C actively sought a change of schools for D. She received support from D’s school, which also made clear that it no longer thought it a suitable setting.
35. I was confused by the Council reference to a ‘mediation meeting’ in November 2022. These are only usually held where a parent has made a formal appeal against an EHC Plan. The more usual approach in these circumstances would have been for the Council to hold a further (or early) review of D’s EHC Plan.
36. But whether the Council took the correct approach here or not, there is no question what it agreed. It said it would seek an alternative education setting for D. This meant it would also have to amend D’s EHC Plan.
37. The Council went on to take both these actions but it delayed in doing so. It was 12 months before it proposed amendments to D’s EHC Plan. It was then a further two months before it found the alternative setting for D. It was then another two months before it issued a new final version of the Plan and D could transfer.
38. I consider this was too long. The benchmark for how long these actions should have taken, would be the timescales expected after there is an annual review of an EHC Plan. In which case, all of these actions should have completed by the end of February 2023 (12 weeks following the November 2022 meeting). So, I consider there was between 13 and 14 months, or around three and a half school terms of delay. This was a fault.
39. There is little on the Council’s records to explain the cause of the delay. It is not until November 2023, when Miss C complained, there is any evidence of the Council beginning to fulfil its commitment given 12 months previously.
40. We are aware, from other investigations we have undertaken over the past two years the Council’s SEN service has been under considerable pressure. It has faced increased demand for assessments and consequently reviews of EHC Plans. We have sought assurances the Council has a plan in place to put more resource into its SEN service, to reduce the delays that have resulted and been a source of complaint. We understand this will take time to show results.
41. I consider these pressures may have contributed to the service failure here. But the circumstances where the Council committed to amend D’s EHC Plan might also be a cause. As I set out below, the Council has agreed to undertake more research to understand what went wrong here and to try to avoid any repeat, which I welcome.
42. The result of the fault identified above was that for the period of delay, D did not receive education provision at a setting better suited to meet their needs. While for around half the time in question, D was also on a part-time timetable and therefore not receiving a full-time education. I conclude therefore D suffered some loss of education provision. I am pleased the Council has also agreed action below to remedy that injustice.
43. In addition, I find Miss C suffered distress seeing the impact of these events on D’s education. She had to give up her employment to care for D while they were at home. The Council accepts this also and has again agreed action to remedy this injustice.
44. The action agreed by the Council takes account of the Ombudsman’s published guidance on remedies Guidance on remedies - Local Government and Social Care Ombudsman.

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Agreed action

45. Within 20 working days of this decision the Council has agreed it will:
    • 1. provide a written apology to Miss C accepting the findings of this investigation and in line with section 3.2 of our published guidance on remedies;
      2. make a symbolic payment to Miss C of £3750. This comprises £1250 for D’s unsuitable provision between March 2023 to October 2023; £2000 for the period November 2023 to March 2024, when D remained on that school roll but could only attend part-time; and £500 in recognition of Miss C’s distress.
46. In addition, the Council has also agreed to undertake more work to improve its service following this complaint. Within two months of this decision, it will:
    • 1. undertake enquiries to understand why between November 2022 and November 2023 it did so little to progress its commitment to Miss C that it would seek a new school for D and amend their EHC Plan;
      2. when it has that understanding, it will then circulate advice to all relevant officers in its special educational needs service about how it will avoid such delays in the future. In particular, it will advise officers on what approach they should follow if contacted by parents or schools outside the annual review cycle advising a child may need a change of placement. The advice should include encouraging officers to hold early (or emergency) reviews of EHC Plans in these circumstances. This will mean their actions will have to follow the statutory timescales which in turn will alert the Council to delays.
47. The Council may provide the advice to officers in writing or in person. It will provide us with proof it has done so, as well as that confirming it has completed the actions required to provide a personal remedy to Miss C, set out in paragraph 45.

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Final decision

48. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Miss C and D. The Council has accepted these findings and agreed to take actions that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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