The Ombudsman's final decision
Summary: Mrs B says the Council delayed consulting specialist schools, delayed reviewing her son’s education, health and care plan and failed to communicate with her effectively. The Council misled Mrs B about the type of school it intended to seek for her son, delayed reviewing the education, health and care plan and failed to communicate properly with her. An apology, payment to Mrs B and a meeting to discuss the way forward is satisfactory remedy.
The complaint
The complainant, whom I shall refer to as Mrs B, complained the Council: delayed consulting specialist schools after it issued her son’s education, health and care plan (EHCP) in January 2021; delayed completing the review of her son’s EHCP, including delaying issuing a final plan; and failed to communicate effectively with her.
Mrs B says failures by the Council have caused her significant distress and have led to her having to go to time and trouble to pursue her complaint. Mrs B also says failures by the Council have placed her son under significant strain.
The Ombudsman’s role and powers
The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended) The Special Educational Needs and Disability Tribunal hears appeals about the content of EHCP including the description of a child’s SEN, the SEN provision in an EHCP and the school or type of provision named in section I.
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) 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)
How I considered this complaint
As part of the investigation, I have: considered the complaint and Mrs B's comments; made enquiries of the Council and considered the comments and documents the Council provided.
Mrs B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
What I found
The special educational needs code of practice Councils' responsibilities towards children with special educational needs (SEN) are set out in the special educational needs code of practice (the code of practice).
An EHCP is a legal document which describes a child or young person's special educational needs, the support they need, and the outcomes they would like to achieve. The council is responsible for making sure the arrangements specified in a child's EHCP are put in place. The council will usually do this by funding to a school or college to provide the necessary support.
The code of practice is based on the Children and Families Act 2014 and the SEND Regulations 2014. It says: where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment; the process of assessing needs and developing EHCPs "must be carried out in a timely manner". Steps must be completed as soon as practicable; and the whole process from the point when an assessment is requested until the final EHCP is issued must take no more than 20 weeks.
The code of practice says EHCP's must be reviewed by the local authority as a minimum every 12 months. The local authority's decision following the review meeting must be notified to the child's parent or the young person within four weeks of the review meeting.
Where the local authority proposes to amend an EHCP, 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. The child’s parent or the young person should be informed that they may request a meeting with the local authority to discuss the proposed changes.
Following representations from the child’s parent or the young person, if the local authority decides to continue to make amendments, it must issue the amended EHCP as quickly as possible and within 8 weeks of the original amendment notice. If the local authority decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit.
When sending the final amended EHCP the local authority must notify the child’s parent or the young person of their right to appeal and the time limit for doing so, of the requirement for them to consider mediation should they wish to appeal, and the availability of information, advice and support and disagreement resolution services.
The child’s parent or the young person has the right to request a particular school, college or other institution to be named in their EHCP and the code of practice sets out what school, college or other institution includes.
If a child’s parent or a young person makes a request for a particular nursery, school or post-16 institution the local authority must comply with that preference and name the school or college in the EHCP unless: it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources.
The local authority must consult the governing body, principal or proprietor of the school or college concerned and consider their comments very carefully before deciding whether to name it in the child or young person’s EHCP, sending the school or college a copy of the draft plan.
Where a parent or young person does not make a request for a particular nursery, school or college, or does so and their request is not met, the local authority must specify mainstream provision in the EHCP unless it would be: against the wishes of the parent or young person, or incompatible with the efficient education of others.
What happened Mrs B’s son attends a mainstream primary school and has autistic spectrum disorder (ASD). The school attended by Mrs B’s son contacted the Council in April 2020 to ask for a statutory EHCP assessment. The Council agreed to carry out a needs assessment in May 2020.
In November 2020 the Council issued a draft EHCP. The Council issued a final EHCP in January 2021, naming the existing mainstream school in section I.
The Council consulted some specialist schools which all said they could not meet Mrs B’s son’s needs. The Council’s specialist resource provision (SRP) placement panel considered the case in May 2021 and concluded that an ASD SRP would be appropriate. The panel agreed to consult with the school requested by Mrs B.
The Council sent out consultations, including to the school chosen by Mrs B, in May 2021. In June 2021 the school chosen by Mrs B told the Council it could not provide a place for Mrs B’s son.
The Council consulted further schools in July 2021. None of those schools said they could accept Mrs B’s son.
Mrs B chased the Council in July 2021 as she had not received any update about what was happening with the schools consulted. Following a further chaser email the Council told Mrs B it had not identified a place for her son. The Council then consulted further schools.
In September 2021 Mrs B told the Council she had decided not to send her son back to school due to his anxiety. Mrs B outlined her concerns about her son not receiving suitable education and the delay finding him a suitable school. The Council agreed to discuss placement options. Mrs B subsequently returned her son to school on a part-time timetable which was built up to full-time.
The Council recommended holding an early annual review of the EHCP to discuss the option of a change of placement. That annual review took place on 11 October 2021.
Mrs B chased the Council for an update on what had happened following the review meeting on 8 November 2021. Mrs B told the Council her son had now completed his five-week transition into full-time at the allocated school, noting he had shown a good start but they were taking it day by day as they knew he could not cope in mainstream school. The school subsequently confirmed Mrs B’s son was receiving constant one-to-one support with a highly differentiated curriculum.
The Council consulted another school in November 2021.
Mrs B contacted the Council again on 18 November and asked for a copy of the consultation papers sent to the various schools as she did not understand why her son had not been offered a place. Mrs B also asked for an update on what was happening with the annual review. As Mrs B had not received a response she chased the Council again on 13 and 14 December. The Council told Mrs B it was still waiting for two consultation responses from schools it had consulted. The Council agreed to again consult the school Mrs B wanted her son to go to.
The Council consulted 17 schools in December 2021, which included the school Mrs B wanted her son to go to.
Mrs B chased the Council for progress on 4 January 2022. The Council told Mrs B it had not received an offer of a school place from any of the schools consulted, although there was one school that had still not responded.
The Council consulted another school in March 2022.
Mrs B chased the Council again in April 2022. A meeting then took place between Mrs B, the provision evaluation officer and SENCO in May 2022.
The Council consulted the school Mrs B wanted her son to go to again in May 2022. The Council also suggested an alternative school and said the school had asked for an observation assessment day. Mrs B declined that suggestion as she and her son had visited that school before and decided it was not suitable for his needs. Mrs B reminded the Council she had not received an EHCP following the October 2021 review.
The Council sent Mrs B a draft EHCP in June 2022. Section I does not name a school but says the type of placement should be a special school/mainstream school. The Council reconsulted the school Mrs B wanted her son to go to, providing it with a copy of the updated EHCP.
In July 2022 the school Mrs B wants her son to go to responded to the latest consultation from the Council. The school said it did not consider itself a suitable placement as Mrs B’s son was in year 4 and the youngest year group at the school was year 5, as Mrs B’s son required one-to-one support in class which the school could not provide and as he would be unlikely to access and fully participate with all aspects of school life.
The Council responded to Mrs B’s chosen school to reassure it about the support her son required. The Council pointed out Mrs B’s son would be year 5, that the EHCP did not say he required one-to-one support all the time and there was no expectation for one-to-one provision within the plan. The Council asked the school to clarify which interventions could not be met so the Council could look at ways to support that. The Council also pointed out that as the school was parental preference the Council may name the school in the EHCP anyway. The school subsequently arranged a tour day for Mrs B and her son but Mrs B is not aware of any progress since then.
The Council has still not issued the final EHCP.
Analysis Mrs B says the Council delayed consulting special schools after it issued the EHCP in January 2021. Mrs B says the Council told her when it issued that plan it would name the mainstream school her son was attending but would continue to seek a specialist school. Mrs B says though the Council delayed doing that until May 2021. Mrs B is concerned because her son was on a part-time timetable, educated out of the main school classroom as he was struggling to manage in a mainstream placement.
Having considered the documentary evidence in this case, along with the Council’s response to my enquiry, it is clear there is some confusion over the type of placement appropriate for Mrs B’s son. On the one hand Mrs B says she was told in January 2021 the Council would seek a placement in a specialist school. On the other hand, the EHCP issued in January 2021 named the mainstream school Mrs B’s son was attending in section I. If the Council considered a specialist school placement appropriate I would have expected it to refer the case to its panel to approve such a setting and to have then recorded in section I of the EHCP that a specialist school was required (if that was agreed). I would then have expected the Council to consulted specialist schools before naming a specialist school in the final plan. I have never seen a case where the Council has named a mainstream school in section I when it considers a specialist school appropriate. That ties up with what the Council has said in its response to my enquiry as the Council says it has always considered a mainstream school appropriate for Mrs B’s son.
It is clear from the documentary evidence though that despite the Council saying it considered a mainstream school appropriate for Mrs B’s son consultations were sent to specialist schools from May 2021 onwards. Despite the Council continuing to say in response to my enquiry that a mainstream school is appropriate for Mrs B’s son the latest EHCP I have seen records the type of placement as being either a special school or mainstream school. It is also clear from the documentary evidence that caseworkers involved with Mrs B’s son considered a specialist school appropriate, despite what the EHCP was saying at that point. I therefore consider it likely, on the balance of probability, Council officers led Mrs B to believe the Council agreed with her that a specialist school placement was appropriate and that the Council would seek such a placement, despite what was recorded in section I in the January 2021 EHCP. I therefore consider the Council failed to communicate effectively with Mrs B and misled her about its intentions. I also consider it likely the misinformation the Council gave Mrs B about what it intended to do in terms of a school placement for her son discouraged her from using her right of appeal about the school named in the January 2021 EHCP. That prevented her presenting her case to tribunal for a specialist school placement.
It is also clear from the documentary evidence there have been significant delays throughout the EHCP process, which the Council accepts. I set out in paragraphs 12-15 the timescales the Council should adhere to when completing a needs assessment or reviewing EHCPs. The Council failed to comply with any of those timescales in this case. For the first EHCP, the Council agreed to carry out the needs assessment in May 2020. However, the Council did not issue the final plan until 18 January 2021. That delay is fault.
Then, when the Council carried out a review in October 2021 it failed to send Mrs B an amendment notice, as it was required to do. That is fault. The Council then did not issue a draft plan until June 2022 and has not yet issued a final plan. All of that is fault. I am particularly concerned about the delay following the review in October 2021 given the Council held that review early so it could consider whether to name a change of placement and to give Mrs B a right of appeal. Delays completing the process have therefore delayed Mrs B’s right of appeal, should the Council not name a school Mrs B is happy with in section I. While I appreciate the Council delayed issuing the final EHCP as it wanted to name an appropriate placement and there have been difficulties identifying a suitable placement that is not a reason to breach the timescales set out in the code of practice and is therefore fault. The Council accepts that.
I also consider Mrs B is left with some uncertainty about whether she would have been able to secure an appropriate placement for her son had the Council completed the process within the statutory timescales, as it should have done. In reaching that view I recognise the Council has consulted with many schools, including specialist schools, in 2021 and 2022, although there were also periods when nothing appeared to be happening. The consultation responses show none of those schools considered they were appropriate for Mrs B’s son. However, that does not prevent the Council naming a school or a type of school in section I and, as I have made clear, that would also have given Mrs B the opportunity to appeal to tribunal for tribunal to make a decision about the type of school placement appropriate for her son. That is a significant injustice.
I am also concerned about how the Council has dealt with the specialist school Mrs B considers appropriate for her son. The evidence I have seen satisfies me the Council has consulted that school on several occasions and on each of those occasions the school has indicated it does not consider it is an appropriate setting for Mrs B’s son. However, when responding to the consultation July 2022 the Council intervened to try to alleviate some of the school’s concerns about whether the school was suitable for Mrs B’s son. The Council appears to have done that to try to encourage the school to accept Mrs B’s son and it seems the Council’s intervention may have resulted in the school agreeing to Mrs B and her son visiting in September 2022 to assess whether the school was suitable. I am concerned the Council did not make that kind of intervention earlier given the issues the school raised in July 2022 were the same as those raised in response to the consultation in January 2022. I could not say the outcome for Mrs B would have been different given I do not know if the school has changed its view on whether it is a suitable placement for Mrs B’s son. However, I consider this has added to Mrs B’s frustration.
In addition to that, I am concerned about the poor communications between the Council and Mrs B. The evidence I have seen satisfies me Mrs B has had to chase the Council on multiple occasions for information about what is happening. Even now Mrs B is still not clear about what the Council’s plans are for education for her son. Failure to communicate with Mrs B effectively and keep her up-to-date with what is happening is fault.
I now have to consider an appropriate remedy for Mrs B. As I have made clear, I consider the Council’s failures have led to Mrs B having to go to significant time and trouble to pursue her complaint. I also consider Mrs B has had her right of appeal delayed and is left with uncertainty about whether the situation could have been resolved if the Council had dealt with matters as it should have done. It is also clear the situation has caused Mrs B significant distress, as well as having an impact on her son. I consider an appropriate remedy would be for the Council to apologise to Mrs B and pay her £750. I also recommended the Council issue a final EHCP as soon as possible so Mrs B can appeal, should she wish to do so. I further recommended the Council arrange a meeting with Mrs B to discuss the options for her son’s education so she is fully appraised of the Council’s view on the type of placement that is appropriate and how education matters can be moved forward. The Council has agreed to my recommendations.
In terms of its procedures the Council has confirmed it is redesigning its special educational needs team, to be implemented over the next few months. That includes a designated team to deal with case maintenance and management. The Council also says this will involve training to improve staff knowledge of the annual review process and training will be ongoing which should improve the capacity to deal with the annual review process according to statutory timescales. I welcome that.
Agreed action
Within one month of my decision the Council should: apologise to Mrs B; pay Mrs B £750; issue a final EHCP (if the Council has not already done so); and arrange a meeting with Mrs B to discuss education options going forward for her son.
For service improvements, we have made recommendations about carrying out annual reviews on time in several other cases over the previous 12 months. I understand from one of those cases the Council has begun reviewing the annual review process, has implemented some improvements and arranged training for staff. I hope that will prevent similar issues arising in future.
Final decision
I have completed my investigation and uphold the complaint.
Investigator's decision on behalf of the Ombudsman