Summary: There was a delay actioning Ms X’s request for a school place for Y. There was a failure to consider carrying out an early annual review of Y’s Education, Health and Care Plan and a delay in issuing a final amended Plan. Communication was poor. This caused avoidable frustration and distress and delayed Y’s transition back to education in a school. The Council will apologise, make symbolic payments, issue an amended Plan and ensure arrangements are in place for Y to start school.

The complaint

1. Ms X complained the Council did not deal with her application for a school place for her child Y. She said this caused avoidable distress, frustration and meant Y was not able to start school in September 2024.

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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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How I considered this complaint

5. I considered the complaint to us, the Council’s responses to the complaint and documents set out in this statement. I discussed the complaint with Ms X.
6. Ms 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

Relevant law and guidance

7. Parents have a right to educate their children at home (Section 7, Education Act 1996). In choosing to educate a child at home, the parents take on responsibility for any costs.
8. A child or young person with special educational needs (SEN) 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 council can do this.

9. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. 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 is only complete when the council issues a decision about the review.
10. 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 the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
11. There is no legal right to an early annual review, but parents may request one if provision in an EHC Plan is no longer meeting the child’s needs. We would expect councils to consider whether an early review is appropriate and to give a parent reasons, if refusing to conduct one.
12. 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 and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (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.

What happened

2023

13. Y has SEN and an EHC Plan dated September 2023. Section I names EHE as Y’s educational placement.
14. In November, Ms X contacted the school admissions service for a school place for Y to start in September 2024. She was told she needed to contact the SEND service, which she did.

2024

15. The Council took no action on the application for a school place until Ms X complained in March.
16. The Council’s responses to Ms X’s complaint (in April and May) said:
• It was sorry for the difficulties she had navigating the system
• Her case officer had changed, Y’s EHE had been reviewed and the case officer would be supporting her to search for an appropriate setting for Y
• The SEND Team would consult with her preferred schools
• The Council was sorry for the lack of communication.
17. Emails between Y’s case officer between May and July and Ms X indicate Ms X provided her two preferred schools and the Council consulted with them. Ms X also sent several emails chasing the case officer for updates. At the end of July, the case officer confirmed the Panel had agreed to name Ms X’s preferred school and Y’s EHC Plan would be amended to reflect this.
18. In August, Y got a new case officer. They emailed Ms X to say her preferred school was going to be directed to admit Y. The case officer said Y was due to have an annual review of his EHC Plan and they wanted to arrange a date to complete this.
19. Ms X told me there had been an annual review meeting in September and the case officer had sent out a draft EHC Plan which she had commented on. Ms X said she had not yet received a final amended Plan and Y had not started school. She understood this was because the Council had not written to the school to direct it to admit Y.

Findings

20. The Council is at fault. Ms X applied for a school place for Y in November 2023. This gave the Council almost a year to identify a suitable placement. The Council failed to take action until Ms X complained several months later. This is not in line with our expected standards of communication and is fault.
21. While there is no legal right to an early annual review of an EHC Plan, Ms X requested a change of placement for Y in November 2023. We expect councils to consider whether an early review is appropriate where the parent of an EHE child asks for a school place because it may suggest the child’s special educational needs are not being met or there may be an issue with the provision on the Plan. Had the Council carried out an early annual review, it is likely schools could have been consulted and a school placement named on an amended Plan in good time so Y could have started school in September 2024.
22. Communication with Ms X was poor and the Council has accepted this in its own complaint response. This is fault causing avoidable frustration.

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Agreed action

23. Within a month of my final decision, the Council will:
1. Issue Y’s final amended EHC Plan naming the agreed placement;
2. Make sure suitable arrangements are in place for Y to start school;
3. Apologise. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings;
4. Make Ms X a payment of £250 to reflect her avoidable distress and frustration; and
5. Make Y a payment of £250 to reflect his avoidable distress at not being able to begin school at the start of an academic year.
24. The Council should provide us with evidence it has complied with the actions in the last paragraph.

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Final decision

25. There was a delay actioning Ms X’s request for a school place for Y. There was a failure to consider carrying out an early annual review of Y’s Education, Health and Care Plan and a delay in issuing a final amended Plan. Communication was poor. This caused avoidable frustration and distress and delayed Y’s transition back to education in a school. The Council will apologise, make symbolic payments, issue an amended Plan and ensure arrangements are in place for Y to start school.
26. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman