Summary: Mr X complained about the Council’s handling of his son’s Education, Health and Care plan and education in school between September 2022 and after September 2023 when he became of compulsory school age. We found the Council was at fault for the delay in deciding if A received all provision from section F of his Plan since April 2023. This caused Mr X distress and uncertainty. The Council agreed to apologise and pay Mr X a financial remedy.

The complaint

1. Mr X complains about the Council’s handling of his son’s, A, Education, Health and Care Plan. He says that since September 2022 the Council filed to:
• promptly finalise his son’s EHC Plan assessment that it paused between April and September 2022;
• share his son’s SEN information with the school he began attending in September 2022;
• provide additional funding to support his son in school following the schools request for exceptional needs funding;
• issue his final EHC Plan in time after the emergency annual review it held in April 2023
• ensure A had access to full-time education since September 2023;
• ensure that A had access to the therapeutic provision named in the section F of the EHC Plan the Council issued in September 2023; and
• respond to his complaints about the Council’s services in line with its complaints policy.
2. Mr X said the Council’s actions caused him and his son avoidable distress and meant that A missed out on education that he should have received.
3. Mr X would like the Council to apologise, pay for A’s missed education between September 2022 and July 2023, pay for the time he spent chasing the Council to issue amended final EHC Plan, pay for the distress the family experience because of the Council’s failings and pay for the therapeutic provision that A missed out on since September 2023.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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)
7. 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 did. (Local Government Act 1974, sections 26B and 34D, as amended)
8. 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.
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
10. 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

11. Mr X complained to us in April 2024 about events that he was aware of in late 2022. Normally we expect the complainants to come to us within 12 month of realising there was an issue. In this case Mr X did not provide me with good reasons for why he did not come to us sooner.
12. Because of this I have decided to investigate his complaint from April 2023 onwards. This means that I have not investigated the first three bullet points from paragraph 1.
13. Additionally, I cannot investigate Mr X’s complaint about A’s access to education and provision from section F of his EHC Plan because he later appealed his Plan to the SEND Tribunal. The provision considerations are too closely related to the disagreement about whether A’s need could be met in any school, and the law says I cannot investigate it.

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How I considered this complaint

14. As part of the investigation, I have:
• considered the complaint and Mr X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
15. Mr X and the Council have 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 happened

16. In September 2022 A started attending a mainstream primary school, although he was not of compulsory school age until September 2023.
17. In late February 2023 the Council issued A’s first EHC Plan following an assessment. Mr X also said at this point the Council had agreed a top-up funding to further support A in a mainstream school, but then did not release the funding. By this point A’s school had told the Council that it could not manage A’s behaviour, and he was only attending 1 hour each day.
18. In late March 2023 the Council agreed a personal budget for A. This was so that A could access a specialist tutor at school and at home. Despite the Council’s agreement, A’s school said it did not want the specialist tutor delivering provision on the school grounds. The school confirmed that A was put on a part time timetable for the last two terms and the school could not meet his needs. The school said it could not provide specialist equipment, and this was unfair to A. He was also at risk of permanent exclusion because he posed risk to other children and adults in the past and was excluded because of this. The school said it had consistently told the Council that it could not meet A’s needs and now called for an early annual review.
19. Following this the Council called an emergency review of A’s EHC Plan. The meeting took place in late April 2023.
20. The Council issued A’s amended draft EHC Plan in mid-June 2023 and the final amended EHC Plan in late September 2023. This said the Council thought A could attend a special school, but Mr X chose to send him to a mainstream school.
21. Around this time the school and the Council met with the parents to discuss A’s attendance. The meeting notes show the Council agreed to grant additional funding to the school, backdated to February 2023, that amounted to £10,000.
22. In mid- December the Council issued a cover letter to Mr X to enable him to appeal the September EHC Plan to the SEND Tribunal.
23. In mid- January 2024 Mr X appealed sections B, F and I of A’s EHC Plan that the Council had issued a month prior. He asked the Tribunal to remove the school named in his EHC Plan and recommend EOTAS.
24. In early February 2024 Mr X complained to the Council. He said that the Council failed to complete his son’s EHC Plan assessment on time, did not consider his Education Other Than at School (EOTAS) request and failed to implement the personal budget it had agreed to in March 2023.
25. Mr X made another complaint at the end of March. He said that A was not able to attend school because of his mental health and the Council failed to provide alternative provision and provision from section F of his plan.
26. The Council did not respond to Mr X’s communications and Mr X chased it for responses to his complaints in mid-April 2024. A few days after, the Council acknowledged his complaints and apologised for the delay in doing so. The Council told Mr X that it would respond to his complaint by late April.
27. In late April Mr X approached the Ombudsman as the Council had not responded to his complaints. We asked Mr X to come back to us once he had the Council’s responses to his complaints.
28. The Council responded to Mr X’s complaint in early May 2024 and said:
• it would not consider this complaint about the events that took place in 2022, because this aspect of his complaint was late;
• the school received the agreed funding for Mr X’s child when it was named in the EHC Plan;
• the Council agreed to a personal budget for a tutor, but the school then did not allow the tutoring to take place on site. The Council worked with Mr X to solve this;
• the Council failed to issue A’s final EHC Plan on time. It apologised for the delay following the April 2023 annual review and offered to pay him £150 for the uncertainty this caused him;
• in 2023 the Council considered that A could attend school, and did not think EOTAS was appropriate for him; and
• it would pay him £150 for the time he had to spend complaining about the services.
29. Mr X was unhappy about the Council’s response and in late May he asked the Council to consider it further.
30. The Council issued its second response to Mr X’s complaint in early July 2024. The Council told Mr X that:
• its complaints policy says that it will not investigate events older than 12 months, so it would not look at the events from 2022;
• it would not make any further comments about EOTAS because Mr X had asked the Tribunal to look at this;
• the Council had already accepted there was delay in the annual review process;
• the Council already offered a suitable remedy for the delay in finalising A’s EHC Plan.
31. Mr X was not happy with the Council’s response and in June 2024 we agreed to assess, and later on, investigate his complaints about the Council’s actions.

Analysis

Plan following emergency annual review in April 2023

32. Generally, we expect councils to follow the timescales set out in the Code which is statutory guidance. We measure a council’s performance against the Code, and we are likely to find fault where there are significant breaches of timescales.
33. The Council decided to carry out an emergency annual review in April 2023 and held the meeting at the end of the month.
34. The Council failed to complete the process and issue a final EHC plan within 12 weeks from the date of the review meeting in April 2023. It should have issued A’s draft EHC Plan around the end of May 2023, but it sent it to Mr X in June 2023. The Council should have issued the final EHC Plan around mid-August 2023, and it did not do it until September 2023. This was a delay of just over two months which was fault. It had an adverse impact on Mr X because it delayed his right of appeal to the SEND Tribunal and caused avoidable distress, and time and trouble chasing officers up.
35. We cannot say, even on balance of probabilities, that A missed out specialist provision from section F of his EHC Plan because at the time he was not attending school, and Mr X and the Council had opposing views about whether A’s needs could be met at any school.

April 2023 to September 2023

36. The Council’s records show an email from Mr X as early as November 2022 in which he told the Council that A was attending school for one hour a day because of the school’s difficulty with managing his needs.
37. We would expect the Council to promptly decide if the full provision from the EHC Plan was available to A when he was only attending for one hour each day. If not, the Council should have taken steps to secure the provision that A was not receiving during his time at school. This did not happen and is fault.
38. The Council considered this, but only during the June 2023 attendance meeting. At this point it decided to award additional funding to the school backdated to February 2023.
39. We consider that between April 2023 and July 2023 A went without the specialist support that he needed because the school said it did not have the required funds to make suitable adjustments to enable him to attend regularly. We cannot say, even on balance, that with the funds available sooner A’s attendance would have improved, but this gives rise to avoidable uncertainty about what would have happened had the Council acted without fault.
40. This means that an already vulnerable child has potentially missed out on further support that they needed to be able to achieve to the best of their abilities.
41. Mr X said the Council should have agreed exceptional funding for the school when it requested it. The Council said it had refused it because at the time A was only attending school for 1 hour per day. However, this was only the case because the school said it did not have the funds to implement the additional support to enable A to attend more. It seems that this created a loop where the Council would not release the funds because of A’s attendance, and the school said A’s attendance would not improve because it did not have the funding.
42. We consider the Council missed an opportunity to assess whether it needed to step in sooner and provide support to A to ensure the school could meet his needs. However, we cannot say, even on balance, the Council was at fault for not awarding the exceptional funding to the school.

After September 2023

43. In September 2023 A reached a statutory school age and started to attend a new school. He was still on a part-time timetable and was receiving tuition at home that was approved by A’s parents. Additionally, the Council said A was receiving Speech and Language Therapy and Occupational Therapy to support him further in reintegrating into attending the new school full-time.
44. In September 2023 the Council issued A’s final amended EHC Plan. Mr X later appealed section I of the Plan to the SEND Tribunal because he considered that A’s needs could not be met in any school, and the Council should have considered EOTAS. The Council’s records show that at the time the Council thought A’s need would be suitably met in a special school. His ability to access education and specialist provision from section F of his plan is closely related to the SEND Tribunal appeal. Therefore, we cannot investigate it or make any recommendations for remedies after September 2023 when Mr X’s appeal rights arose.

Complaint handling

45. The Council accepted there was delay in its complaints responses to Mr X’s complaints. This is fault. The Council offered to pay him £150 for his time and trouble.
46. We consider the Council’s remedy offer is in line with our guidance on remedy and suitably addresses the injustice the delay in the complaint handling caused to Mr X.

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Agreed action

47. Within one month of the date of the final decision statement, the Council will:
• Apologise to Mr X for its failure to quickly assess if A had access to all his EHC Provision after it issued his EHC Plan in February 2023 and the distress and frustration this has caused them. The Council should refer to our guidance on making an effective apology;
• pay Mr X £500 to remedy the distress, frustration and uncertainty the Council’s actions caused him as a result of the delay between April 2023 and July 2023 in releasing additional funding to A’s school to provide appropriate support;
• pay Mr X £150 to remedy avoidable time and trouble he spent chasing the Council for answers to his complaint; and
• and issue reminders to relevant staff about the importance of contemporaneous record keeping around the Council’s decisions in relation to its section 19 and section 42 duties.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. We have found fault ion the Council’s actions that caused Mr X avoidable distress and uncertainty. The Council agreed to our recommendations and our investigation is complete.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman