Summary: The Council significantly delayed issuing an Education, Health and Care Plan for Ms X’s child, G, after it was ordered to by a tribunal. It also failed to properly record its decision-making regarding G’s education and delayed consulting for school places. The Council’s faults have caused Ms X uncertainty and frustration and the Council has agreed to apologise, pay Ms X £500 and carry out service improvements.

The complaint

1. Ms X complained the Council:
1. significantly delayed issuing a final Education, Health and Care Plan for her child, G, after a tribunal order;
2. delayed consulting her preferred school for G;
3. wrongly declined to keep G back one year in school; and
4. failed to update her or communicate with her properly.
2. Ms X said the Council’s faults have caused her distress and caused G to miss out on education.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. 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)
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 investigated events from when they began on 14 December 2023 to the date of the Council’s final complaint response on 19 September 2024.
10. Any events after this time are new matters which the Council has not yet had the opportunity to respond to through its complaints process. I have not investigated these for the reasons set out in paragraph six.
11. Any events referred to in this decision that took place before or after these dates are only included for context.

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How I considered this complaint

12. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
13. Ms X and the Council have an opportunity to comment on a draft decision and all comments are considered before making a final decision.

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What I found

Law and guidance

Education, Health and Care Plans

14. 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.
15. The EHC Plan is set out in sections which include but are not limited to:
• Section B: Special educational needs;
• Section F: The special educational provision needed by the child or the young person; and
• Section I: The name and or type of educational placement.
16. The Ombudsman cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the SEND Tribunal or the council can do this. 

Phase transfers

17. The council must review and amend an EHC Plan in enough time for a child or young person to move between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new placement.
18. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases. One of these key transfers is the year in which a child transfers from primary school to secondary school.

Appeals to SEND Tribunal

19. There is a right of appeal to the SEND Tribunal against several council decisions relating to EHC Plans. These include but are not limited to a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment; and
• 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 in their EHC Plan.

20. If the SEND Tribunal orders the council to make an EHC Plan for the child or young person, the council will have five weeks to issue this Plan following the date the Tribunal sent out its order.

Elective home education

21. Parents have a right to educate their children at home (Section 7, Education Act 1996). There is guidance setting out how this type of home education should be approached by councils (Elective Home Education, Departmental guidance for local authorities, April 2019).
22. Councils do not regulate home education and the primary responsibility remains with the parent. However the 2019 guidance says councils have a social and moral duty to ensure that a child is safe and being suitably educated.

What happened

Background

23. In February 2023 G was diagnosed with a neurodevelopmental condition. G also has mental health issues and challenges with their communication.
24. At the beginning of this investigation period, in December 2023, Ms X’s child, G, had been electively home educated for several years while Ms X sought an EHC Plan for them. It took Ms X several years to obtain an EHC Plan, as it involved appealing to the SEND Tribunal twice before the Council issued a Plan for G.

Key events

25. On 14 December 2023 the SEND Tribunal ordered the Council to issue an EHC Plan for G which set out special educational provision to meet their needs.
26. The Tribunal ordered the Council to:
• Act swiftly to issue an EHC Plan for G; and
• Consider in good time what secondary school placement would be suitable for G, as they were due to transition in September 2024.
27. The Council had five weeks to issue the final EHC Plan but did not meet this timescale and G continued to be home educated.
28. In late February 2024 the Council called Ms X to discuss progress with the EHC Plan. It offered to provide interim tutoring for G while the Council sought a school placement for them for the remainder of 2024 school year. Ms X declined this.
29. During the call, the Council told Ms X its intention was to consult a primary school - Primary School A - for G to attend for the remainder of the 2024 school year. It said regarding G’s upcoming transition to secondary school, it would consult her preferred secondary school – Secondary School A – with a view to G starting there from September 2024.
30. The Council consulted Primary School A, Secondary School A and multiple other schools in mid-March 2024, approximately three weeks after the caseworker’s call with Ms X. Neither of the preferred schools responded and the Council did not follow up on these consultations. Other schools responded negatively except another secondary school, Secondary School B. In mid-July 2024, Secondary School B said it could accept G from that September.
31. The Council contacted Ms X in July to say it had found an alternative secondary school for G. However by this time, Ms X said, due to the amount of schooling G had missed, she wanted G to stay back an academic year. Ms X asked the Council to allow G to start in year six, at Primary School A, in September 2024, instead of him starting secondary school.
32. The Council put this request to its panel and the panel declined to keep G back a school year. The Council said it does not keep minutes of these panel meetings and so there is no record of how the Council considered the request. The only written note from the meeting is in the decision section, which said, “in general, placements outs of year group are not evidence based”.
33. Ms X complained to the Council about her experience. The Council responded at the final stage of the complaints process in August 2024 and it agreed its communication had been poor. Regarding the panel’s decision though, it said if she disagreed with the named school placement, she would need to appeal the final EHC Plan to the SEND Tribunal. There was no final EHC Plan issued for G at that time.
34. The Council issued G’s final EHC Plan on 2 October 2024. It named the secondary school that was not Ms X’s preference - Secondary School B. Several months later, following involvement from children’s services, the Council decided to keep G back an academic year. It decided G could complete the remainder of year six at Primary School A in the 2024/25 academic year, instead of starting their first year of secondary school.

My findings

Complaint 1a) Delayed EHC Plan

35. The Council had five weeks following the Tribunal’s order to issue G’s EHC Plan and instead it took 41 weeks and 6 days. The Council also recorded incorrectly that it had issued G’s final Plan in August 2024 when it did not send this to Ms X until October 2024. This significant delay and poor record keeping was fault and caused Ms X frustration and distress.
36. If not for the Council’s delay, G’s final EHCP would have been issued on 18 January 2024. This would have outlined special educational provision G would access between January and July 2024, either while continuing to be electively home educated or through another education placement. It would also have named their secondary school placement for September 2024. Instead G did not have a legal record of their special educational needs and the provision needed to meet them during this time.
37. We cannot say even on balance whether Ms X would have agreed with the content of the Plan or the provision put forward by the Council if it had issued the Plan in time. This is because Ms X disagreed with the Council about what education was suitable for G. However Ms X has been caused uncertainty about whether G could have accessed more education and support than they did in those seven term-time months. In addition, her rights to mediation and to appeal to the SEND Tribunal over any disagreements were frustrated by the Council’s delay.

Complaint 1b) Delay consulting school

38. The Council consulted Ms X’s preferred primary school and secondary school for G on 16 March 2024, sixteen weeks after the Council was ordered to issue an EHC Plan for G. The Council has accepted it delayed consulting schools for G and this was fault.
39. The Council also failed to follow up with Ms X’s two preferred schools when they failed to respond to its consultations. As the Council failed to follow these up, there is no record of Primary School A, or Secondary School A’s responses. This has caused Ms X uncertainty about whether G could have attended one or both of Ms X’s preferred schools if the Council had followed up with these providers.

Complaint 1c) Decision on G remaining in primary school

40. It is not for the Ombudsman to decide whether G should have been kept back an academic year due to the amount of education they had missed. The Council is the decision maker in this situation, the Ombudsman can only consider whether there was any fault in how the Council made its decision.
41. In this case, the Council decided not to allow G to stay back one academic year. However it did not keep a record demonstrating how it considered and weighed up this decision. This was poor record keeping and was fault. It then went on to decide several months later that it would keep G back a year. The Council’s panel should have kept a record to show how it made its decision and considered what was in G’s best interests. The Council’s lack of record keeping in relation to this decision has caused Ms X avoidable uncertainty about whether the Council considered this issue properly.

Complaint 1d) Lack of communication

42. The Council has accepted that during this complaint period it failed at times to update Ms X regarding her child’s education or respond to her communications. This was fault. This poor communication caused Ms X further uncertainty and frustration.
43. Following several recent cases investigated by the Ombudsman, the Council has carried out service improvements in relation to its communication and so I have not repeated any of these recommendations below.

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Action

44. Within one month of the date of the final decision, the Council has agreed to:
1. Apologise to Ms X for the injustice caused by the faults in this case; and
2. Pay Ms X £500 to reflect the frustration, uncertainty and frustrated appeal rights caused by the Council’s faults.
45. Within three months of the date of the final decision, the Council has agreed to:
1. Demonstrate that it has taken action to ensure it complies with SEND Tribunal orders within the legal timeframe in future; and
2. Demonstrate that it has taken action to ensure its panel decisions are better recorded in future and clearly show how and why the Council has taken its decisions regarding children and young people’s education. This should include making changes to its panel forms and documents where needed.
46. 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.
47. The Council should provide us with evidence it has complied with the above actions.

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Decision

48. I find fault causing injustice. The Council has agreed to take actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman