Summary: We upheld this complaint. There was delay finding a school place for Y and in issuing his final Education Health and Care Plan. This caused avoidable distress and a loss of educational provision. The Council will apologise, make payments and review its procedures to minimise the chance of the same thing happening again.

The complaint

1. Mr X complained the Council delayed issuing a final Education Health and Care Plan and finding his son Y a school place when the family moved into the area in September 2022. This meant Y was out of school for over a year and did not receive any educational provision.

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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. 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)
4. 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

5. There is a right of appeal to the SEND Tribunal, so I have not investigated the lack of a named placement in Section I of Y’s EHC Plan. But Mr X is not complaining about the content of the plan or the placement, his complaint is about delay in the process when they moved into the Council’s area.

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How I considered this complaint

6. I considered the complaint to us, the Council’s responses and documents in this statement. I discussed the complaint with Mr X.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

8. 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.
9. 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 guidance is based on the Children and Families Act 2014 and the SEND Regulations 2014. It says if the council decides to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks. It also says the process should be completed in a timely manner.

10. Where a child moves between areas while they are being assessed for a plan, the new authority should decide whether it needs to carry out an EHC needs assessment itself and it should use the information gathered as part of its own needs assessment. Depending on how far the assessment has progressed, this information should help the new authority complete the process more quickly (Code, Paragraph 9.162.)

11. 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 (Children and Families Act 2014, section 42).
12. All councils must have a Fair Access Protocol (FAP) to ensure unplaced and vulnerable children and those having difficulty securing a place in-year are allocated a school place as quickly as possible and within 20 school days (Paragraph 3.14, School Admissions Code 2021.) The Council’s FAP (which mirrors the School Admissions Code) says:
• An unplaced child includes one who has moved into the county;
• FAPs may only be used to place certain groups of children, including children with SEN but no EHC Plan where they are having difficulty in securing a school place and reasonable measures have been taken to secure a place through the usual admission procedure. For example, where an application has been made to at least one school and has been refused or the Council confirmed there are no available places at any school within a reasonable distance (Paragraph 3.14);
• FA panel meetings take place each four weeks to discuss cases with schools in the area;
• The FAP must seek to place a child in a school appropriate to their needs;
• Where it has been agreed a child will be considered under the FAP a school place must be allocated to them within 20 school days;
• Admissions authorities should admit pupils when asked to do so by the FAP, even when the school is full (Paragraph 3.15).

What happened

2022

13. Y and his family, including younger siblings of school age, moved into the Council’s area in September 2022. At the time of the move, Y did not have a draft or final EHC Plan, although there was a decision to issue him with an EHC Plan from the previous council. (Mr X has not complained about this council, but Y’s final EHC Plan says he requested an EHC needs assessment in February 2022. So the other council should have issued a final Plan within 20 weeks so by about June 2022 to comply with the timescales in the Code)
14. Mr X said he never received a draft EHC Plan for Y from the previous council because of delays and staff shortages.
15. The Council told me the correct process for applying for a school placement for children without an EHC Plan was by Mr and Mrs X submitting an application for a school place through the admissions team. The Council told me it had no evidence Mr and Mrs X applied this way, although younger children in the family had applications to mainstream schools via the admissions system and were placed without delay. Mr X told me if the Council had advised him to apply for a mainstream place for Y through the Council’s on-line admissions system, he would have done so.
16. Mrs X emailed the Council in September shortly before they moved asking what to do about Y’s EHC Plan. An officer replied saying she needed to give the child’s details and then it would request the file from the previous council. Mrs X provided the child’s details. Hearing nothing, Mrs X chased the Council at the start of October and then emailed the Head of Service a week later.
17. The Council issued a draft EHC Plan for Y on 19 October.

2023

18. Mr X complained to the Council in January 2023 about the matters he has raised with us. Its first response in February upheld the complaint about delay in finding Y a school place. The response went on to say the funding panel discussed the type of education needed and then the SEND team consulted with a mainstream school and a special school, which was his preference. Unfortunately, neither school offered a place because they were full.
19. Mr X escalated his complaint to the second stage of the Council’s complaint procedure in June 2023 because the Council had still not found a school place for Y. He also said the Council had taken longer than it should have to issue the final Plan. He asked for redress for the lack of education.
20. The Council issued a final EHC Plan in August 2023. This named a type of placement (a maintained special school).
21. The Council’s final response to the complaint in September said:
• It had still not found a school place for Y due to schools not having capacity or not being able to meet his needs.
• It had consulted with over 10 schools.
• It accepted it had not issued the final EHC Plan within the 20-week timeframe.
22. The Council told me

“Tuition was first offered 3 November 2023 when the caseworker texted the parent, which had been the method of communication that the parent indicated was their preference. The caseworker introduced herself, provided an update about the school placement and discussed a tuition offer. Tuition was offered within the home, virtually and also at a local centre but parent didn’t feel that this was appropriate and communicated this to the EHC team. [A tuition provider] was approached to work with Y but the arranged introductory appointments were cancelled by parents. The first meeting was booked for 6 December which was cancelled by parents due to illness, this was rebooked for 13 December which parent requested was rescheduled as parent had double booked appointments to 12 January 2024.

Tuition was offered for 15 hours a week and in agreement with parents this was going to be delivered over 5 sessions a week. Transport and an appropriate location for the tuition to take place was sourced. Alongside the discussions about tuition multiple school places were consulted with for Y”

23. Emails between council officers and Mr and Ms X support the Council’s statement in the previous paragraph. Ms X emailed the case officer in the middle of December 2023 saying it did not make sense to start tuition as it wouldn’t be consistent. She went on to say starting tuition and then stopping would not make Y feel great as he already thought no-one wanted him in a school. An email from the case officer encouraged Ms X to go ahead with the initial meeting with the tuition provider because even if funding was agreed for their preferred placement, it would take time to organise the transition and transport. The emails indicate Mr and Ms X had cancelled the initial appointment.
24. The Council told me it had secured a place at an independent special school for Y and this was confirmed very recently. Y started in the middle of March.

Findings

25. Y’s EHC Plan was already overdue when he moved into the area in September 2022. This was obviously not within the Council’s control. However, the Council did not issue the Plan for almost a year. This is far longer than the timeframes in the SEND Code, was not timely and was fault.
26. Mr and Mrs X applied to the Council’s admissions system for their other children. They did not do so for Y and instead exchanged emails with officers in the SEND team. Even though there was no online application, the Council was aware of Y being in its area and needing a school place because of Mr and Mrs X’s emails to officers in September and October 2022, including an email to the Head of Service. They should have advised Mr and Ms X to apply for a school place for Y through the mainstream admissions system. If the parents had received this advice, Y may not have got a mainstream school place and so his case would have been dealt with through the FAP. Ultimately, the Council could have directed a mainstream school to admit Y while it was preparing his final EHC Plan. This would have meant Y would have had a school place in the Autumn Term of 2022. The Council did not advise Mr and Mrs X of the admissions process and did not act in line with the Schools Admissions Code or its FAP.
27. The Council offered Y 15 hours of tuition in November 2023. This should have been offered, arranged and put in place in August 2023 at the same time as the final EHC Plan was issued. The failure to do this was fault.
28. The Council did not do enough to ensure the provision in Section F of Y’s EHC Plan was in place from the date it was issued in August 2023. This was not in line with Section 42 of the Children and Families Act and this was fault.

Injustice

29. The failings I have identified in paragraphs 25 to 28 meant Y did not have a school place for the last school year (2022 to 2023) or special educational provision in line with his EHC Plan for this school year. It caused Mr Y avoidable distress and a delay in appeal rights (although he has not used them.)

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Agreed action

30. Within one month of my final decision, the Council will:
• Apologise in line with our published Guidance on Remedies for the fault and injustice I have identified;
• Make Mr X a payment of £250 for his avoidable distress; and
• Make Y a payment of £9600 to reflect the loss of educational provision. This is at the top end of our Guidance on Remedies and reflects the lack of any placement in 2022/2023 (three terms) and a lack of special educational provision secured for the Autumn Term of 2023 (one term). The Council’s offer of 15 hours a week of tuition from January 2024 was refused by Y’s parents. So I am not recommending a remedy for lost provision from January 2024.
31. The Council and other partners in the health and social care services are currently drafting a Move In Policy for Young People which the Council says will minimise the risk of recurrence. Within three months of my final decision, the Council will provide this office with a written update on the progress of this policy.
32. The Council should provide us with evidence it has complied with the above actions in paragraphs 30 and 31.

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Final decision

33. I uphold this complaint. There was delay finding a school place for Y and in issuing his final Education Health and Care Plan. This caused avoidable distress and a loss of educational provision. The Council will apologise, make payments and review its procedures to minimise the chance of the same thing happening again.
34. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman