Summary: Mrs X complains the Council did not deal properly with her son’s education. The Council did not follow statutory timescales, did not consult schools in time, did not ensure education provision for her son and did not communicate effectively with her. Mrs X suffered a delayed right of appeal, avoidable distress and uncertainty, and Y missed special educational needs provision. The Council has offered an appropriate remedy.

The complaints

1. The complainant, whom I shall refer to as Mrs X, complains the Council has not dealt properly with her son Y’s special educational needs because it:

• Failed to follow statutory timescales when dealing with his EHCP.
• Failed to properly provide Autism Outreach support.
• Failed to consult parental preference schools in time.
• Failed to make full education/Special Educational Needs (SEN) provision between June 2023 and July 2024.
• Failed to communicate with her.
• Did not answer all of her complaint, it picked and chose parts of the complaint to respond to and delayed its complaint response.

2. Mrs X says she suffered avoidable distress and uncertainty, was delayed in exercising her Tribunal appeal rights, incurred costs of independent reports and Y missed educational/special educational needs provision.

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The Ombudsman’s role and powers

3. 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)
4. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
5. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
8. 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

9. I have not investigated that part of Mrs X’s complaint about education provision after she received her appeal rights in November 2023 because that relates to the named provision in Y’s EHC Plan and is therefore outside the Ombudsman’s jurisdiction.

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How I considered this complaint

10. I spoke to Mrs X about her complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
11. Mrs 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

Law, guidance and policies

12. 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
13. The whole process of EHC needs assessment and EHC plan development, from the point when an assessment is requested (or a child or young person is brought to the local authority’s attention) until the final EHC plan is issued, must take no more than 20 weeks. (SENDCOP para 9.40)
14. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Limits on jurisdiction

15. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
16. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
17.  

What happened?

18. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
19. Y was seen by the Council’s Autism Outreach Team (AOT) at a Communication and Interaction Surgery in November 2022.
20. Mrs X requested that the Council complete an Education Health and Care Needs Assessment (EHCNA) in January 2023.
21. The Council requested advice in relation to the EHCNA from the AOT in June 2023.
22. The Council emailed Y’s school telling them it could not contribute to the EHCNA because Y was not on caseload.
23. Educational Psychologist (EP) advice was not received by the Council until July 2023.
24. A final EHC Plan for Y was issued in November 2023.
25. Mrs X appealed the final EHC Plan in December 2023.

Analysis

Statutory Timescales

26. The Council upheld Mrs X’s complaint that it exceeded the 20-week statutory timescale for completing Y’s EHC Plan. It accepts there was a delay of 21 weeks, due to delay in obtaining an EP report. I consider this to be service failure. Mrs X suffered uncertainty and frustration at the delay.

Autism Outreach Support

27. The documentary evidence available clearly shows the nature of the initial AOT contact was a Communication and Interaction Surgery.
28. Emails between Mrs X and the Council show that Mrs X did not ask whether Y was on the AOT caseload, nor did the Council say he was.
29. Although the Council initially made an error about whether Y was on the AOT caseload, it quickly corrected this by contacted Y’s school.
30. Emails shows that an error was made by Y’s school because it missed the email from the Council which clarified Y’s status with its AOT. I am satisfied this error was the main cause of the school’s mistaken belief that Y was on the AOT caseload. It is not the fault of the Council if Mrs X or Y’s school subsequently mistakenly believed the AOT contact was of a different nature. This is not fault by the Council.

School Consultations

31. The Council partially upheld Mrs X’s complaint and accepts that parental preference schools were not consulted until after the final EHC Plan was issued.
32. The Council says the outcome in the EHC Plan would have been the same in any event. I have seen the Council’s reasoning which was set out in a letter to Y’s school before the final EHC Plan was issued.
33. I am unable to definitively say whether or not there would have been any difference in outcome in relation to the consultation responses, if the consultation requests had been made earlier.
34. On the balance of probability, given the reasoning expressed in the Council’s letter to Y’s school, I agree with the Council that the outcome would have been the same even if consultation requests had been made earlier. Mrs X therefore did not suffer any injustice as a result.

Education

35. The 21 week delay to the issuing of Y’s final EHC Plan means he missed his entitlement to SEN provision for that period of time. 21 weeks is the equivalent of just over one and a half terms. I consider this to be fault by the Council. Y Missed SEN provision.

Communication

36. Ther Council upheld Mrs X’s complaint that communication with her had been poor. I agree this is fault by the Council. Mrs X suffered avoidable distress and uncertainty.

Complaint Handling

37. The Council upheld Mrs X’s complaint and accepted there was delay in providing its complaint response. I agree this is fault by the Council. Mrs X suffered avoidable distress and uncertainty.
38. The Council says it reviewed Mrs X’s complaint and concluded that each point raised overlapped with at least one other point. It grouped her complaint into a number of elements and a response was provided to each element.
39. In its response to my enquiries, the Council says, “On review, the Council recognises that there are three points that could be deemed as not being responded to, although they were intended to be read in relation to the elements specified in the response.” These points relate to delays, adequate education and communication.
40. The Council has provided an explanation to the Ombudsman indicating how it believes those three points were covered by other parts of its complaint response.
41. The Council’s complaint response covered delays, Mrs X’s right to appeal to Tribunal if she was unhappy with the named school or the EHC Plan content, and communication.
42. On the balance of probabilities, the Council did respond to Mrs X’s complaint, but not in a clear and transparent manner as it could have done. Although the complaint response from the Council could have been clearer, this is not fault by the Council.

Action by the Council

43. In its final complaint response, the Council:
• apologised to Mrs X in its final complaint response, for the delays and poor communication.
• offered a remedy payment of £500 in recognition of the delay to the EHC Plan process, reflecting £100 per month of delay.
• offered a remedy payment of £200 in recognition of avoidable distress and uncertainty caused by poor communication.
44. During my investigation the Council also proposed to offer a remedy payment of £250 in recognition of the delay in providing a complaint response.
45. The Council’s proposed remedy is in line with the Ombudsman’s Guidance on Remedies. I therefore consider the remedy offered by the Council above to be appropriate. The Council should ensure the remedies identified are implemented within four weeks of this decision.

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Final decision

46. I have found fault by the Council, which caused injustice to Mrs X. The Council has already offered an appropriate remedy. I have now completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman