The Ombudsman's final decision
Summary: Mrs X complains about how the Council handled her son, S’s, Education, Health, and Care Plan. Mrs X said the Council’s failures caused avoidable stress to her, but also to S who was upset about not having a college place in time for September 2023. The Council was at fault for the delays in securing a college place and poor communication about the progress with Mrs X. The Council offered her a financial remedy for the distress, and we consider it to be in line with our guidance. The Council also agreed to make a symbolic payment for the avoidable frustration and effort Mrs X went to because of the Council’s poor communication with her.
The complaint
Mrs X complains about how the Council managed her son, S’s, Education, Health and Care (EHC) Plan. She says that since 2019 the Council failed to: update his EHC Plan following annual reviews; secure a college place for S in time for September 2023; communicate with her effectively about the progress of consulting and finding a college place for S; stop S’s tutors from coming to her house, even though she flagged that education at home would not be appropriate for him and cause more anxiety for him; provide tutors appropriately trained in S's needs; and provide the hours of support to S that social services agreed to in summer 2023 until November 2023.
Mrs X said that, because of the Council’s actions, S physically assaulted her on two occasions and the tutors had to call the police. She also said the Council’s actions caused her and S avoidable distress, uncertainty, and financial loss and distress as she said she had to stop working. Mrs X also said the delay in securing a college place for S, affected his school of preference being able to meet his needs – something it said it could do when she first requested the Council to consult with the school.
Mrs X would like the Council to apologise and make service improvements so this does not happen to other families. She would also like the Council to recognise the mental and financial pressure the Council’s actions have caused and address these.
The Ombudsman’s role and powers
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) Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), 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)
What I have and have not investigated We have not investigated parts b, d, e, and f of Mrs X’s complaint. This is because this is something that is related to Mrs X’s SEND Tribunal appeal and we would expect her to raise those issues during the Tribunal hearing. The law says that we cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers.
How I considered this complaint
As part of the investigation, I have: considered the complaint and Mrs X's comments; made enquiries of the Council and considered the comments and documents the Council provided.
Mrs X and the Council have had an opportunity to comment on my draft decision. I considered comments I received before making a final decision.
What I found
Education, Health, and Care Plan (EHC Plan) The Children and Families Act 2014 (the Act) sets out the framework for supporting special educational needs (SEN). The Act is supported by Special Educational Needs and Disabilities Regulations 2014 (the Regulations) and the Special Educational Needs Code of Practice 2015 (the Code). These contain detailed guidance to local authorities about how they provide support for children and young people with SEN.
Most children with SEN have those needs met by schools and early years settings. Those bodies have a responsibility to identify children with SEN, sometimes with the help of outside specialists.
If a school or parent has concerns that, despite a school’s SEN provision, a child is not making the expected progress, they can ask a local authority to consider whether it needs to carry out an assessment of EHC needs.
An EHC Plan is a legal document which sets out a description of a child's special educational needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health, and social care.
The Council must respond to all requests for an EHC Plan. It must decide whether an assessment is needed within six weeks of receiving the request. The whole process from the point of request to the Council issuing the final EHC Plan must take no more than 20 weeks.
Where there are exceptional circumstances, it may not be possible for the Council to meet the timescales. The Council should tell the child’s parent or the young person of the reasons for any delays.
As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: the child’s educational placement; medical advice and information from health care professionals involved with the child; psychological advice and information from an Educational Psychologist (EP); social care advice and information; advice and information from any person requested by the parent or young person, where the council considers it reasonable; and any other advice and information the council considers appropriate for a satisfactory assessment.
The Regulations set out the minimum information and advice the Council should seek in an EHC assessment. A parent or young person can ask the Council to seek advice from anyone within health, education, or social care and, provided it is a reasonable request, the Council must do so. It is more likely to be reasonable if that professional is already involved with the child.
The Regulations say the advice should be provided within six weeks, which is also the timescale for a local authority deciding whether it needs to draw up a Plan.
The Code says a council: must ensure the child’s parents are fully included from the start and consulted throughout the production of the Plan; and should carry out timely, well-informed assessments.
The Council can only issue an EHC Plan after a child or young person has gone through the assessment. At the end of that process the Council must decide whether to issue a Plan or not.
If the Council decides to issue a Plan, it must first issue a draft for the parents or young person to consider. The Council does not have to provide exactly what the parents request, but it should be able to explain why the EHC Plan meets the needs of the child.
The Ombudsman cannot investigate the Council’s decision whether to conduct an assessment, and the content of the EHC Plan, as these are appealable to SEND Tribunal.
The Ombudsman can look at delay in the assessment and creation of an EHC Plan as well as failure by the Council to deliver the provision within an EHC Plan, as long as they are not connected to, or a consequence of, an appeal.
Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the Plan. The local health care provider will have the duty to deliver the health care provision.
What happened In December 2022 Mrs X told the Council her preferences for colleges for S. In early 2023 Mrs X realised the Council consulted a college with S’s old EHC Plan that it failed to amend following the last annual review.
The Council issued S’s new draft EHC plan in mid-March 2023 and his final amended EHC Plan at the end of the month. The final EHC Plan named a type of placement but did not name a specific provision. Mrs X said the plan was not ideal, but she agreed to it because she wanted to continue consulting schools in hope of securing a college place for S in time for September 2023.
In early July 2023 Mrs X complained to the Council and said it: consulted schools with S’s old EHC Plan that had not been updated following the annual reviews it held for him; and left the consultations too late, so it was unlikely it would be able to secure a place for S in time for September 2023.
In mid-July 2023 the Council held an annual review for S.
At the end of the month the Council answered Mrs X’s complaint. It said that: the Council did not work on S’s college placement in a timely manner; the communication with Mrs X about the progress of finding a college place was below the expected standard; frequent caseworker changes created a gap in communication; it did not update S’s plan after annual reviews for several years; social services were reviewing S’s support hours, and his social worker would recommend additional hours; and the team manager would be able to meet with Mrs X as per her request.
Mrs X met with the service manager at the end of July 2023. Mrs X told us that during this meeting the Council agreed to keep her updated of the progress in securing a college place for S. The Council confirmed this took place and it communicated with Mrs X weekly from then on.
In early August 2023 the Council decided it would fund support hours for S whilst there was no college place for him.
Mrs X asked for stage two of the complaint procedure in mid-September 2023. She said S’s plan was still not finalised and although she was promised weekly updates during the July’s meeting, this did not happen. Meanwhile, S was not getting education, nor any of his therapies.
The Council issued an amended final EHC Plan on the following day. Five days later, Mrs X confirmed to the Council that she would like to continue with her complaint, even after S’s final EHC Plan was issued because: the Council did not update her as it said it would; and S was still without a college place.
The Council issued its final response to Mrs X’s complaint at the end of October 2023. In it, the Council said that: Mrs X and S experienced unacceptable delays in trying to secure his college place for September 2023; it would now consider and consult residential placements for S; it could not say if S would have had a college place had the delays not occurred, and recognised this caused Mrs X avoidable uncertainty; offered to pay Mrs X £1,000 to recognise the uncertainty and lack of college placement for S; it did not have to update S’s EHC Plan annually, and the SEN Team focussed on updating plans during phase transfers; and it accepted S was not receiving the therapies listed in his EHC Plan.
Mrs X was unhappy about the Council’s reply and in the same month she submitted an appeal to the SEND Tribunal and her complaint to us.
Analysis Annual reviews and September 2023 school place The Council accepted that it failed to update S’s EHC Plan regularly for the last five years. Although the Council is not required to update every EHC Plan annually, it is required to make this decision based on the information gathered during the annual review. This is to ensure that the plan adequately reflects and meets the child’s needs. Any changes should not depend on the transfer windows. Our understanding is that S’s school held annual reviews for him, submitted documents to the Council and it decided to maintain his EHC Plan without changes. The Council must tell the parent of its intention to maintain or amend the plan. It seems this did not happen here, and we consider this to be fault.
The Council also accepted that it did not act in a timely manner to ensure it secured an adequate college place for S. As a result, S missed out on some education and the therapies from his EHC Plan. The Council offered to pay Mrs X £1,000 to recognise the distress and uncertainty the delays in securing S’s college place have caused her.
We consider the Council’s remedy is suitable and in line with our published guidance on remedies.
Communication standards with Mrs X The Council accepted that S’s case workers did not always keep Mrs X updated of the progress of finding a college place for S. Because of this the Council said its communications with Mrs X fell below the expected standard.
The Council also acknowledged that its records supported that Mrs X spent considerable time in chasing officers and undertaking her own enquiries when the case workers failed to update her on the outcomes of school consultations.
The Council did not offer Mrs X a remedy for the avoidable frustration and effort she went to in chasing the officers. At the end of this decision, we have recommended a remedy for this injustice.
Agreed action
Within one month of the date of the final decision statement, the Council will: apologise to Mrs X and S for its failure to secure S’s college place in September 2023 and the distress and frustration this has caused them. 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 Mrs X £1,000 it originally offered to recognise the distress and frustration she experienced; and pay Mrs X £300 to recognise the avoidable frustration and effort she went to since early 2023 chasing S’s caseworker for meaningful updates about consultations and progress of securing his college place.
The Council should provide us with evidence it has complied with the above actions.
Final decision
The Council accepted it was at fault for the delay in securing S’s college place, and poor communication with Mrs X. It has agreed to our recommendations to remedy the injustice its actions caused and our investigation is now complete.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman