Summary: Miss X complained the Council failed to comply with the Special Educational Needs and Disability Tribunal decision which ordered the Council to name a specific school in her son’s Education, Health and Care Plan. We found the Council’s failure to issue a new EHC Plan as ordered by the SEND Tribunal is fault. This fault has caused Miss X and Y an injustice.

The complaint

1. The complainant, Miss X complained the Council failed to comply with the Special Educational Needs and Disability Tribunal decision which ordered the Council to name a specific school in her son’s Education, Health and Care Plan.
2. Miss X says this meant her son was unable to start at the specified school in September 2024.

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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 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)
4. 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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How I considered this complaint

5. As part of the investigation, I have discussed the issues with Miss X and considered the complaint and the documents provided by Miss X and the Council.
6. Miss 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

Education, Health and Care (EHC) Plan

7. 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 council can do this.
8. There is a right of appeal to the Tribunal against:

• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

9. Once a Tribunal has issued a decision the council must carry out the order within a fixed period. Where a council is ordered to change the name of the school named in an EHC Plan this must be done within two weeks.

What happened here

10. The Council issued an EHC Plan for Miss X’s son, Y in June 2023. The Plan named School 1, a mainstream primary school. Miss X appealed to the SEND Tribunal in relation to the content of the Plan and the named school.
11. Y started in Reception at School 1 in September 2023. In November 2023 School 1 held an emergency review of the EHC Plan as it could not meet Y’s needs and felt he required a specialist placement. The Council issued a draft amended Plan in January 2024 but did not issue a final Plan. The issue of the placement named in the Plan remained to be determined by the Tribunal.
12. The SEND Tribunal heard Miss X’s case in May 2024. The Tribunal allowed Miss X’s appeal and ordered the Council to amend Y’s EHC Plan to name School 2, a special school. The Council did not amend Y’s EHC Plan within the required two week timeframe. It advised Miss X it could not issue a final amended Plan as it was considering appealing the Tribunal decision.
13. Miss X complained to the Council in early June 2024 and said it was in breach of its statutory duties and obligations. She noted the Council was seeking to appeal the decision but asserted this did not exempt the Council from fulfilling its legal obligations.
14. The Council applied for permission to appeal the Tribunal decision on 18 June 2024.
15. Miss X made a further formal complaint in late June 2024 in relation to the SEND team as a whole. She complained her calls and emails were ignored and the Council had still not issued a new EHC Plan. Miss X was concerned that with only three weeks left before the end of term School 2 would struggle to assess Y and arrange transition days before it broke up for the summer.
16. The Council responded on 11 July 2024 and did not uphold Miss X’s complaint. It said it had followed due process in requesting an appeal within the 28 day timeframe. The Council asserted that until the Tribunal responded to its request to appeal there was no final decision to conclude the appeal. It said it had not breached any statutory duties or obligations and was working within the boundaries of the First Tier Tribunal process.
17. Miss X was not satisfied by the Council’s response and maintained the Council had a legal duty to update the EHC Plan naming the specified school within two weeks of the Tribunal decision. Almost three months later this had not been completed and it was unclear where Y would attend school in September 2024. Miss X asked the Council to review her complaint.
18. The Council refused to consider Miss X’s complaint at stage two of the complaint process. It was satisfied it had dealt with her complaint properly and said there was nothing further it could do to resolve her complaint.
19. In a further response the Council advised Miss X that School 1 had made arrangements for Y to return in September 2024 while the SEND team continued to identify a specialist school placement. The Council said its SEND team were liaising with senior leaders and specialist schools to try to create some additional capacity in it specialist settings. As soon as further capacity was secured Y would be offered a place.
20. On 3 October 2024 the Tribunal refused to review the decision and refused permission for the Council to appeal to the Upper Tribunal.
21. The Council wrote to Miss X in late October 2024 in response to her further concerns. It noted the Council had conceded Y needed a special school education and had sent consultation requests to a number of special schools, including School 2. Although School 2 had said it was unable to meet Y’s needs the Tribunal had ordered the Council to name School 2 in Y’s EHC Plan.
22. The Council said it was concerned the Tribunal had not considered all of the information it had shared and the tribunal process and decision had resulted in an error in law. It had therefore requested permission to appeal the decision.
23. While awaiting the response, the Council said it continued to seek a suitable specialist placement for Y. It also provided additional resources to School 1 to better enable them to provide the provision and support Y required. The Council considered beginning a transition to School 2 would be unsettling and confusing for Y if the placement was appealed. As permission to appeal had now been refused, the Council had made arrangements for Y’s transition to School 2 to take place.
24. Miss X remains dissatisfied with the Council’s response and actions. She says that as the Tribunal decision was not suspended pending the Council’s application for permission to appeal Y should have transitioned to start School 2 in September 2024.
25. Y remained at School 1 for the first half term and moved to School 2 in early November 2024. Miss X says School 1 kept Y in Reception and would not let him move up to Year 1 due to safety fears. This affected Y’s meant health and wellbeing. She asserts the Council was aware a mainstream school could not meet Y’s needs but chose to leave him at School 1 to save money.

Analysis

26. There is a clear requirement that once a Tribunal has issued a decision the Council will carry out the order within the set timeframe. In this instance the time frame was two weeks. The Tribunal issued the Order on 21 May 2024 so the Council should have issued an amended EHC Plan naming School 2 by 4 June 2024. The failure to do so is fault.
27. The Council told Miss X that until the Tribunal responded to its request to appeal there was no final decision to implement. However, any EHC Plan put in place by the SEND Tribunal is legally binding until otherwise ordered. An application for permission to appeal does not invalidate or suspend the Tribunal decision.
28. The Council could request that the Upper Tribunal suspend the decision of the First-tier Tribunal when if/when it appealed. But in order to appeal it must first apply for permission to appeal. There was no provision for the Council to defer implementing the Tribunal order pending a decision on its application for permission to appeal.
29. The Council’s failure to implement the Tribunal Order promptly meant that Y missed out on a suitable education for the first two months of the academic year. The Tribunal decision states it was not persuaded that a mainstream school, even with a resource base would meet Y’s needs. And the Council conceded Y needs a special school placement. Y should have been able to transition and attend School 2 from September 2024 but instead remained at School 1 for the first half term.
30. Miss X says Y was physical with staff and other children when he returned to School 1 and he was not allowed to move up to Year 1. Y’s needs were not met at School 1 and this had a detrimental effect on his mental health.
31. When a child has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment of between £900 to £2,400 per term to acknowledge the education they have missed and help them to catch up.
32. In determining an appropriate level we will take account of factors such as:
• The severity of the child’s SEN as set out in the EHC plan;
• Any educational provision that was made during the period;
• Whether additional provision now can remedy some or all of that loss; and
• Whether the period affected was a significant one in a child’s school career, for example the first year of compulsory education, the transfer to secondary school or the period preparing for public exams.
33. Given Y’s age, the stage of his education, and the education he received, I consider a payment of £600 for the failure to provide a suitable education for half a term would be appropriate.

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Agreed action

34. The Council has agreed to:
• apologise to Miss X and Y for the failure to issue a new EHC Plan naming School 2 within the required timeframe. 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.
• pay Miss X £600 in recognition of Y’s missed education in September and October 2024;
• Pay Miss X £200 to recognise the distress and uncertainty the Council’s failure to issue a new EHC Plan naming School 2 within the required timeframe caused her;
• remind officers the Council must issue an amended final EHC Plan within the required timeframe following the SEND Tribunal ordering amendments.
35. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Final decision

36. The Council’s failure to issue a new EHC Plan as ordered by the SEND Tribunal is fault. This fault has caused Miss X and Y an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman