Summary: Mr X complained about delay and poor communication in the education, health and care plan process. In particular, Mr X said there was fault in the consultation process which meant his son missed the opportunity of an earlier specialist school placement. We have found delay and poor communication by the Council causing Mr X avoidable distress. The Council has agreed to apologise and provide a symbolic payment.

The complaint

1. Mr X complains about delay and poor communication in the education, health and care plan (EHCP) process. In particular, Mr X says there was fault in the consultation process which meant his son (Y) missed the opportunity of an earlier specialist school placement.

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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 evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
6. Mr 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

Background and legislation

Education, Health and Care Plans

7. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child or young person’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. 

Reviewing EHC Plans

8. 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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
9. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
10. 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

What happened

11. This chronology includes key events in this case and does not cover everything that happened.
12. Y had an ECHP from August 2020. This named a mainstream nursery placement. This was amended in October 2020 to name a mainstream primary school. Section F set out an individual learning and support programme which was to be reviewed by the school on a termly basis. This focussed on classroom strategies around communication and sensory matters. Y had full time support in a specialist classroom setting within the school.
13. The Council reviewed the EHCP in July 2021 and wrote to Mr X in August to say it did not intend to make any changes at that time.
14. In responding to the Ombudsman’s enquiries, the Council has advised it did not respond to the July 2022 annual review meeting. The Council says this was due to a high turnover of staff at the time and Y’s case was not appropriately handed over. The Council has said it is sorry this happened. This is fault.
15. The Council reviewed the EHCP in June 2023. This included a speech and language therapy (SALT) review report following a session with Y in January 2023 and with teaching staff in April 2023.
16. The Council wrote to Mr X on 13 June to say it had accepted the recommendation to make changes to the plan and would provide an amended EHCP.
17. The Council wrote to Mr X on 12 September to say that following the annual review it had decided to issue an amended draft EHCP and enclosed a copy. This did not provide the type of setting or name a placement.
18. The school contacted the Council in September on behalf of Y’s parents to say they had decided they would like him to attend School A. The Council explained it would progress an application to the SEND Panel. The school provided further information about Y’s changed needs to support an application for a change of setting.
19. The Council referred the matter to its SEND Panel on 13 September. The referral noted that although the current placement was a mainstream school Mr X’s son did not access his mainstream classroom and spent all his time in an area that was essentially an unofficial enhanced resource school (schools that offer specialist provision for children with specific learning needs or disabilities). The SEND Panel agreed the referral on 22 September for the provision in the EHCP to be provided by a specialist setting. The Council noted School A was Mr X’s preferred option.
20. The Council consulted with School A on 25 September 2023. The Council received a response on 3 October. School A confirmed it was able to make the provision set out in the EHCP but that Y’s inclusion at the setting was not compatible with the efficient education of other pupils. It was explained there were more pupils on roll than the current funding provided for and the class group for Y was full and the size of the room meant an additional pupil could not be accommodated. The school explained it was working on an expansion and could consider a placement for September 2024.
21. The Council issued a final EHCP on 16 February 2024. This named the current mainstream primary school but set out that a specialist placement was being sought for September 2024.
22. The Council wrote to Mr X on 14 August 2024 to say it would be in touch to arrange a meeting to discuss consultations to a specialist placement once schools reopened in September and any alternative provision that could be put in place to support Y in the meantime. The Council has confirmed it has no record of any correspondence with Mr X to follow this up and has apologised. This is fault.
23. The Council consulted with three schools at the end of August 2024. This did not include School A. The Council has explained Y could not be offered a place at School A due to capacity. However, the Council has agreed additional capacity in special schools in its area and Y’s case was further considered at the special school admissions panel in October 2024 and January 2025. School A subsequently identified capacity to offer a place to Y in September 2025.
24. The Council issued an amended EHCP on 7 February 2025 which named school A from September 2025.
25. The Council has confirmed Y remained on roll at his current mainstream school and received the provision set out in his EHCP.

Analysis

26. The Council has accepted there was delay and failings in its communication with Mr X as set out above. This is fault.
27. I cannot say, but for this fault, Y would have been given a placement at his parents’ preferred option of School A or another specialist school any sooner. I also note there is no evidence Y was not receiving the provision set out in his EHCP at his current school.
28. However, I am satisfied Mr X will have suffered avoidable distress and uncertainty about the arrangements for Y’s education during this period. I have made a recommendation on this point and taken into account the period of time involved.
29. As part of another recent investigation the Ombudsman requested evidence of the Council’s action plans to improve its SEND services and the impact of the changes it has made. This includes how its services communicate with service users. Therefore, I have not made a service recommendation on this point.

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Action

30. The Council will take the following action within one month of my final decision to provide a suitable remedy to Mr X:
1. write to Mr X to apologise for the delay and poor communication identified above; and
2. make a payment to Mr X of £500 to acknowledge his avoidable distress and uncertainty.
31. 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.
32. The Council should provide us with evidence it has complied with the above actions.

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Decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman