Summary: There was fault by the Council causing injustice. It delayed consulting with Ms X’s preferred school for her child Y and failed to communicate with her. This caused avoidable distress but no missed educational provision because Y could have attended her existing school to receive the educational provision on her Education Health and Care Plan. The payment and apology the Council has already offered is a partial remedy. I recommend a further apology and a higher symbolic payment.

The complaint

1. Ms X complained about a:
1. delay consulting with her preferred school, School A, which caused delay in amending Section I of her child Y’s Education Health and Care Plan (EHC Plan) and in turn admitting Y.
2. failure to communicate adequately with her
3. failure to secure special educational provision on Y’s EHC Plan
4. how School N handled safeguarding and bullying issues.
2. Ms X said this caused avoidable distress and a loss of special educational provision.

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The Ombudsman’s role and powers

3. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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)
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(1), 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 complaints (a) and (b) although the period from August to December 2023 is late. This is because there is evidence Ms X was attempting to communicate regularly with the SEND team from August 2023, receiving few or no responses and she did not let matters rest.

10. I have investigated complaint (c) although Ms X had an appealable decision from the date of the final Education Health and Care Plan. It was not reasonable to expect her to appeal because the Council was actively looking to consult and move Y to a different school.
11. Complaint (d) is about a school’s actions or failures to act and the LGSCO has no power to investigate schools unless they are acting on behalf of a council, which is not the case in a complaint about how bullying was handled.

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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 had an opportunity to comment on two draft decisions. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

14. Our Principles of Good Administrative Practice set out our expectations of councils. We expect them to be citizen focused. This means keeping to commitments including any published service standards and dealing with people helpfully, promptly and sensitively. We also expect councils to be open and accountable. This includes keeping adequate records.
15. 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, including Section F (special educational provision) and I (educational placement). 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. There is a right of appeal to the Tribunal against a council’s decision to name a particular placement in Section I or to name no placement.

16. Councils must secure the special educational provision (SEP) in Section F of an EHC Plan (Children and Families Act 2014, section 42)

17. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says: 

• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.
• The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.

What happened

2023

18. Y was at School N, a mainstream academy, in 2023. School N told us Y was on its roll until 28 March 2024. School N requested an EHC needs assessment for Y in May 2023.
19. The Council issued a draft EHC Plan at the start of August 2023. Ms X sent in her comments. She told the Council her preferred placement was School A (also a mainstream academy). The Council has not provided any written evidence it consulted with School A (or any other placements) in August. The Council issued a final EHC Plan in the last week of August 2023. There was no placement named in Section I, which just said Y needed a mainstream secondary school or academy.
20. On 8 September 2023, the Council wrote to School N sending a copy of Y’s final EHC Plan. The letter said it was a ‘formal consultation on placing Y.’ School N replied saying it could meet most of Y’s needs, but it was aware Ms X wanted Y to go to a different school.
21. An internal email chain between council officers at the end of September said School N had agreed to offer Y a place. An officer responded saying to name School N and then sent a further brief email which said, ‘Please ignore – Don’t name.’
22. Ms X emailed the Council at the start of November asking what was happening about her request for Y to change school.
23. On 14 November, a Council officer emailed School A with a consultation and enclosing a copy of Y’s EHC Plan. The officer emailed again on 5 December. School A replied the next day saying it had already emailed its response on 14 November saying it could not offer Y a place as her year group was full.
24. An internal email between Council officers on 5 December asked for a consultation letter to be ‘resent’ to School A. Another internal email said Ms X had been on the phone asking for an update.
25. The Council wrote to School A on 7 December 2023 directing it to admit Y, to add her to its roll and to contact Y’s family to make transition and joining arrangements. The letter said the Council had made additional funding of £8000 available to School A as well as notional funding of £6000 to meet the provision in Y’s EHC Plan.

2024

26. The Council issued Y’s amended EHC Plan on 27 February 2024. It named School A as Y’s placement. The SEP in Section F was the same as in the first Plan of August 2023.
27. An officer emailed a further copy of the letter to School A directing it to admit Y (see paragraph 22) along with a copy of Y’s final amended EHC Plan.
28. Y was removed from School N’s roll at the end of March.
29. Ms X emailed the Council in April 2024. She asked the Council to explain:
• Why it was taking so long to sort out Y’s placement
• Whether the letter to School A had been sent
• When Y would be moving school
• Who was responsible for Y’s case and why it was all taking so long
• What provision would be put in place for Y meantime.
30. An internal email exchange between Council officers said School A had not contacted Ms X and the direction letter to admit Y was issued to School A on 27 February 2024. (However, School A confirmed to me that it received the direction to admit letter in December 2023)
31. School A also told me Y was on its roll from 15 April 2024.

Council complaint and responses

32. Ms X used both stages of the Council’s complaint procedure. I have summarised the responses below
• It had recently obtained a new case system and staff had received training on recording communication.
• It was sorry for the two-month delay responding to her complaint at stage two.
• There was a delay in sending consultation papers to School A. However, when consulted in November 2023, School A said it could not meet all of Y’s needs. The plan should have been amended in December 2023 (to name School A) because the consultation response did not persuade the Council that School A should not be named.
• It offered a small symbolic payment to reflect avoidable distress caused by the delay in consulting with School A.
33. Responding to my enquiries, the Council accepted communication with Ms X was poor and it only provided evidence of limited contact. It said the case officers involved had now left the Council.

Information from School N

34. We asked the Council to provide evidence of the steps taken to ensure Y was receiving the SEP on her EHC Plan, between September 2023 and the end of March 2024. The Council told us it had not retained case records, but it has since introduced a new data system and trained staff on record keeping using the new system.
35. Because of the lack of council records, we asked School N for information about the steps taken to reintegrate Y into school during this period and to secure her SEP. School N told us members of its staff contacted different officers in the Council’s EHC team requesting updates between September 2023 and March 2024. It also said a staff member complained to the Council regarding delay in EHC cases generally and Y’s in particular. School N also said:
1. It offered a phased return in September 2023
2. It asked the Council in October 2023 to update it on the placement to be named in the amended final Plan. Y had four different Council case workers between October and December, there were neither meetings nor phone calls from the Council and no updates.
3. It received a draft Plan at the end of October 2023
4. It spoke to Ms X in the middle of November and she confirmed she was also having problems getting information from the Council
5. It was copied into an email from a relative of Ms X to the Council which said Y’s needs were not being met at School N, parents had requested a different school and the consultations to that school only went out at the end of October
6. It arranged a home visit with Ms X at the end of November
7. It phoned Ms X at the start of December, Ms X was concerned about Y returning because of a previous serious bullying incident. It offered support to enable a return to school as online education was said by Ms X to be too easy (which Ms X denies saying). Ms X was reluctant to bring Y back
8. It offered two days a week initially with days Y would like and staff were going to explore tuition
9. In January 2024, Ms X called school, frustrated with letters left on welfare visits and asked what needs to be done for Y to come off the roll. Ms X was unhappy with welfare visits and asked no-one came to the house unannounced
10. Ms X emailed at the end of January 2024 to remove Y from the roll and staff declined.
11. Ms X told staff at the end of March that Y was starting School A on 8 April. School A confirmed she started on 15 April.

Was there fault and if so did the fault cause injustice requiring a remedy?

Delay consulting with Ms X’s parental preference, School A, which caused delay in amending Section I of Y’s EHC Plan and in turn admitting Y to School A.

36. There was fault by the Council. It should have consulted with School A at the beginning of August 2023 when Ms X expressed a preference at draft Plan stage. It did not do so until November 2023 which was not in line with the SEND Code of Practice and was fault causing avoidable frustration. School A confirmed it received the direction to admit letter in December 2023. The Council took from December 2023 to February 2024 to name School A and reissue an amended Plan with School A as the named placement. Theis further delay was fault meaning Y could have started attending the preferred placement sooner causing avoidable distress and frustration, but no loss of educational provision, for reasons I will explain in paragraph 37 below.

Failure to communicate adequately

37. The Council accepted its communication with Ms X was poor. It was not in line with our expected standards an as I have set out in paragraph 11 and was fault causing avoidable distress.
38. The Council has also not kept adequate case records of communications from Y’s schools and Ms X. This is not in in line with our standards and is fault. The injustice is limited though because relevant evidence from Y’s schools is available.
39. The Council’s complaint responses did not adequately recognise the additional distress caused by the lack of communication with Ms X by caseworkers. Ms X had to chase for updates and was left distressed and uncertain about what was happening. A further remedy is required for this which I deal with in the next section.

Failure to secure special educational provision on Y’s EHC Plan

40. The Council has not retained any case records for the period September 2023 to March 2024 which is fault as I have set out earlier. However, School N has provided some information from the records it has retained. I recognise Ms X and Y did not want Y to return to School N, however, I am satisfied School N took action to try and reintegrate Y into school and had Ms X and Y engaged with the attempts and offers, she could have received the provision in Section F. School N offered a phased return, outreach visits, on-line education and a part time timetable on days Y might like to attend. So, although Y did not receive provision in Section F between September 2023 and March 2024, there is no fault by the Council. I am satisfied with the steps School N took on the Council’s behalf.

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Agreed Action

41. Within one month of the final decision, the Council will issue:
1. A further apology. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
2. A payment of £350 (including the payment already offered by the Council) to reflect the avoidable distress caused by poor communication and delay.
42. The Council should provide us with evidence it has complied with the above actions.
43. My investigation has highlighted a lack of retained records to support the Council’s position which I have decided was fault. I am satisfied the Council has taken action to minimise recurrence as it has implemented a new database and staff have received training on how to record and retain communications with parents, families and schools. So there is no need for me to recommend action to improve the Council’s service.

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Decision

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

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Investigator's decision on behalf of the Ombudsman