Summary: Miss X complained that the Council failed to provide a proper education to her daughter, and caused delays when deciding her special educational needs support. We have found fault with the Council because it caused a significant delay while amending
Miss X’s daughter’s support. This likely caused Miss X distress. We cannot comment on other matters because they are linked to something which could have been appealed to the SEND Tribunal.

The complaint

1. Miss X’s daughter, Y, has autism and ADHD, and suffers from mental health issues. Miss X says these issues have prevented her from going to school full-time.
2. Miss X complains that:
• Y only attended school part-time for around two years, and then stopped going completely. And the Council failed to deliver full-time education to her while she was not attending school. This means she has received hardly any education for around three years.
• Throughout this period, the Council’s communication was extremely poor. It failed to keep Miss X updated and did not respond to her calls and emails. This was particularly notable over the past year or so, when the Council delayed a panel hearing on Y’s case and did not tell Miss X for several months.
• The Council delayed making amendments to Y’s special educational needs support in 2024.
3. Miss X says the Council’s failings have led to Y missing out on education. She also says she has suffered distress.

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The Ombudsman’s role and powers

4. 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)
5. We consider whether there was fault in the way a council made its decision. If there was no fault in how the council made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. If we are satisfied with a council’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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What I have and have not investigated

Late complaints

8. 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)
9. Miss X complained to us in April 2024, so any part of her complaint about matters before April 2023 is, by the definition in the Local Government Act, late.
10. Although the events Miss X describes date back to 2021, I have seen no good reason to disregard the time limit in the Act. It would not have been unreasonable to expect her to complain earlier.

Right of appeal

11. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
12. The law says we cannot normally investigate a complaint when someone has (or had) a right of appeal 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 (or to have used) this right. (Local Government Act 1974, section 26(6)(a), as amended)
13. In general terms, this means I cannot investigate any complaint about how a council decided a child’s special educational needs support (including how it decided the child’s school). Any parental dissatisfaction with the support and the school could be appealed to the Tribunal.
14. This also means I cannot investigate anything which is linked to a decision which has a right of appeal.
15. Although Y has been out of school (at least full-time) for a long time, this non-attendance is closely linked to Miss X’s disagreement about the suitability of the school.
16. This disagreement could, ultimately, have been taken to the Tribunal – and may well have been. Because of this, I cannot investigate Miss X’s complaint about Y not receiving full-time education while she was not attending school.

Other complaints

17. I have investigated Miss X’s complaints about the Council’s poor communication and about the delay to its amendments to Y’s special educational needs support.

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How I considered this complaint

18. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
19. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

The Council’s responsibilities

20. 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.
21. Statutory government guidance (the ‘SEND code of practice’) says that, within four weeks of an annual review, the council must write to the child’s parent and tell them whether it has decided to keep the EHC plan as it is, amend it or cease it.
22. If the council has decided to amend the plan, it must do so and issue a new one within a further eight weeks.

What happened

23. In December 2022, Y stopped going to school. Miss X said this was because the school could not meet Y’s needs.
24. Y’s school put a part-time timetable in place along with a reintegration plan. She started attending again, albeit inconsistently.
25. In June, Y’s school reviewed her EHC plan. It noted that, despite the support it had put in place, her attendance continued to be poor. It wrote to the Council about this and said it believed it was an unsuitable placement for Y.
26. In October, Y’s school put alternative provision in place for her. This involved two days a week at an equine therapy centre (as well as her part-time timetable).
27. The Council wrote to Miss X in November and told her it intended to amend Y’s EHC plan. It provided a copy of a draft amended plan.
28. Miss X told the Council that:
• Y had not attended school full-time for several months. She still went to school three mornings a week and went to the equine centre the other two days.
• Y was not getting all of her special educational needs support.
• Y’s case was meant to be heard by the Council’s panel in October but Miss X had not heard anything.
29. The Council apologised for a lack of communication, and for not honouring its promise of a panel date in October. It said this was because of a mistake with the school’s review paperwork.
30. Y’s school held another EHC plan review in December. The school said Y was “not coping in this setting at all”.
31. In February, Miss X complained to the Council. She said Y had no education and was not going to school at all. She said Y’s case had still not been to panel, even though this was supposed to have happened the previous October 2023.
32. In late March, the Council responded to Miss X’s complaint. It apologised for the delay to the panel hearing.
33. In April, the Council wrote to Miss X and – again – told her it intended to amend Y’s EHC plan. It provided a copy of another draft amended plan.
34. The Council held its panel in May. The panel recommended that Y’s alternative education be increased as part of a package of reintegration back into school. The Council notified Y’s school.
35. In September, the Council issued Y’s amended EHC plan, naming his existing school.

My findings

36. After Y’s annual review in June 2023, the Council should have sent Miss X its decision on whether it would amend Y’s EHC plan within four weeks of the review. It did not do so for five months.
37. In December, after Y’s further review, the Council should have sent Miss X its amendment notice within four weeks (early January 2024) and then issued Y’s amended EHC plan within a further eight weeks (late February). These documents were issued three and six months late, respectively.
38. This means the Council was at fault for around ten months of combined delays following both annual reviews.
39. The Council’s ultimate decision was that Y should stay in her existing school. So, during the delay, she remained in a school which the Council considered suitable.
40. As I have said above, any disagreement Miss X had with that decision could have been appealed to the Tribunal (and may well have been). I cannot comment further on the suitability of Y’s school, and therefore cannot say whether this delay caused her an injustice.
41. However, I am satisfied that the delay likely caused Miss X distress. Her right to appeal to the Tribunal about Y’s school – which she felt, very strongly, could not meet her needs – was significantly delayed.
42. The Council tells me it is prepared to offer Miss X a symbolic financial remedy of £600 to recognise her injustice. But this does not recognise the full extent of both delays. The Council should provide an improved financial remedy, which I have set out below.
43. The Council also delayed its panel’s consideration of Y’s case by several months, and did not keep Miss X updated. This was also fault by the Council.
44. The Council has already apologised for this; however, a further symbolic financial remedy is justified, both for this delay and for other communication problems the Council admitted to Miss X in late 2023 (and for which it also apologised).
45. There has recently been an independent review of the Council’s special educational needs service, and a series of recommendations were made. Time will tell whether they are effective.
    
     

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Action

46. Within a month, the Council has agreed to make the following symbolic payments to Miss X:
• £1,000 to recognise the distress and other inconvenience she suffered as a result of the delays to Y’s amended EHC plan.
• £250 to recognise the distress she suffered as a result of the communication problems she experienced with the Council.
47. The Council will provide us with evidence it has made these payments.

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Decision

48. The Council was at fault, and this caused Miss X an injustice, which the Council will now take action to address.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman