Summary: Mrs B complains the Council delayed in completing her son’s final Education Health and Care Plan (“EHCP”) and placed him at an unsuitable school. Mrs B says that due to the delays he was in the school for 18 months, which had a detrimental impact on his education and caused distress. The Ombudsman finds the Council at fault for the delay in issuing a final amended EHCP.

The complaint

1. The complainant, who I refer to as Mrs B, complains the Council delayed in completing an EHCP for her son, Y. She says the Council placed Y in a school that was not suitable. She says that due to this decision she needed to ask for a further educational psychology assessment and research other schools. The Council then delayed in completing referrals to the schools. Mrs B says she then appealed the school named in the final EHCP. The Council initially opposed her appeal, but then chose not to contest the appeal and agreed to name her preferred school, after more delay. Mrs B says Y was in an unsuitable school for 18 months, which negatively impacted his education and caused him severe distress.

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What I have investigated

2. I have investigated the delay in the Council issuing a final amended EHCP. I have not investigated the Council’s decisions about what schools to name for the reasons outlined in the final paragraphs of this statement.

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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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was submitted if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
6. If we are satisfied with a council’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)

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How I considered this complaint

7. I considered the information Mrs B provided and spoke to her about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Mrs B and the Council for their comments, before making a final decision.

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What I found

Law and Guidance

8. 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.
9. The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Local authorities should ensure they have planned sufficient time for each step of the process, so that wherever possible, any issues or disagreements can be resolved within the statutory timescales. Steps must be completed as soon as practicable; the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).
10. If a child’s parent makes a request for a particular school, the local authority must comply with that parental preference unless:
• It would be unsuitable for the age, ability, aptitude or SEN of the child
• The attendance of the child there would be incompatible with the efficient education of others, or the efficient use of resources
11. Local authorities must review ECH plans regularly, at least every 12 months.
12. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
13. Where a 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)
14. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
15. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
16. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.

Background

17. Y has a condition which means his body does not produce enough energy. This can lead to a lack of mobility and difficulty speaking when his energy gets too low, several times a day.
18. In 2019 Y moved from primary school to a mainstream secondary school (“School A”). He had an EHCP in place. Mrs B says he transferred to School A based on advice from the primary school but against advice from his special educational needs coordinator (“SENCO”). Mrs B says that despite efforts for support Y, School A was not meeting Y’s needs. He was struggling to keep up, not getting any recreational time and suffered from depression while at the school.
19. In April 2020 the Council completed a review of Y’s EHCP. The review identified that a mainstream setting was not appropriate for Y and he was struggling to keep up with the pace of lessons. Professionals from School A outlined their concerns that they could not meet Y’s needs. Mrs B asked for Y to move to a special educational needs school and put forward her preference as (“School B”).
20. In May 2020 the Council sent Mrs B a draft amended EHCP. The plan included a statement of Y’s needs and the results of a recent ‘WIAT-II’ test. At that stage the EHCP did not name a school. Mrs B provided comments, based on which the Council made changes to Y’s statement of needs.
21. It also sent consultations to School A and School B. School A said it did not agree to being named as Y’s school in the updated EHCP. It outlined a wide range of concerns based on what it had also raised during the annual review. School B also did not agree to being named. School B said it was unable to meet Y’s needs as he was at a higher academic level than its other students and the school had already exceeded its published admission number for Y’s year group.
22. The Council referred the matter to its next available SEND placement panel, in late June 2020. The panel advised Y’s ability would not be suitable for a specialist setting of School B. It said Y would not have an appropriate peer group or level of challenge. It recommended considering alternative resource provision for physical disability within a suitable mainstream school. It suggested two schools to consider, one of which was School C.
23. The Council fed this back to Mrs B. It indicated the EHCP was still at a draft stage and the parties would need to discuss how to go forward to issue a final plan, so Mrs B would have appeal rights.
24. Mrs B disagreed with the decision and did not believe alternative provision in a mainstream school was suitable. She said the WIAT-II test had shown Y was three to four years behind academically so could not understand how he would be ahead of his peers at a special needs school. Mrs B said the Council had sent the initial draft EHCP plan to School B, without the amendments made following her comments. She said the initial draft did not reflect Y’s true academic difficulties, so School B did not have the full information when making its decision. The Council said it had sent the updated EHCP but would check the school had considered the right document.
25. Y’s physical disability therapist commented that School C may be able to provide alternative provision for Y’s physical disability. However, she said Y would still be in a mainstream school with large class sizes and a fast-paced curriculum. She said School C would not be able to support Y with these problems any more than School A. Y’s SENCO asked if it was possible to obtain an education psychology (“EP”) assessment for Y.
26. The Council agreed to arrange an EP assessment for September 2020, when Y returned to school. This was so the EP could assess Y in an educational setting. In mid-July 2020 the Council indicated that it considered the best thing to do was name School A in the EHCP. In late July 2020 it emailed again to say the best thing for Mrs B to obtain a right of appeal was to name School A and finalise the plan. Mrs B requested the Council hold off on finalising the plan until all information from the EP was received.
27. The EP assessment took place in late September 2020. The EP issued their report in late October 2020. The report said Y’s needs were not being met through a typical mainstream setting even with a significant level of support. It said he required access to a setting that aims to meet his holistic needs relating to his learning, social and emotional development.
28. The Council completed an updated draft EHCP and sent a further consultation to School B. School B responded in early November 2020 to say it still considered Y was not suitable for the school. It commented on the EP report. It said the report showed Y was on the low average range of the WASI scale. It said this was outside the range of provision at School B, which catered for pupils with moderate to severe learning difficulties.
29. The Council referred the matter back to its SEND placement panel for the end of November 2020. The panel again advised that Y was too academically able for a special school and better matched to a mainstream placement. It considered alternative provision was suitable and would support Y with his physical and emotional needs. It recommended that School C would be suitable.
30. Mrs B disagreed with the panel’s recommendation. In December 2020 she asked the Council to consult with another school she had identified (“School D”) and considered was more suitable than School C. Mrs B said School D required that children were three to four years behind academically but did not require moderate learning difficulties. Mrs B said she would not send Y to School C as it was still a mainstream school and less suitable that School A.
31. School D was not in the Council’s local authority area. The Council therefore said it would need to consult through the other council’s local SEN team. The Council sent a consultation to School D in early January 2021. The school responded to say it was full but did not say whether it could meet Y’s needs. Mrs B asked the Council to obtain a further response. It received the further response in early February 2021. School D provided a more detailed account of why it could not take on any further students without prejudicing education to other students.
32. The Council says a further panel met at the end of February 2021. It has not provided notes from the panel. However, it says the panel recommended that School D was full so the Council would not name this in the EHCP. It said it did not have the same powers to direct a school in another area and anything along these lines would need to go through the other local authority. It issued a final EHCP naming School C.
33. In April 2021, Mrs B appealed the named school in the final EHCP. Mrs B also challenged certain aspects of the Council’s statement of needs. A tribunal hearing date was set for September 2021. The Council completed a further annual review in late April 2021. The annual review states that Y is not coping in a mainstream setting.
34. In May 2021, the Council made further enquiries to School D about its suitability. It arranged a meeting for June 2021, with the other council’s SEN team and School D. Following this meeting all parties agreed to offer Y a place at School D and name it in his EHCP. The Council also agreed to make certain changes to the statement of needs. It therefore did not oppose Mrs B’s appeal and there was no tribunal hearing.

Findings

35. For the reasons outlined at Paragraphs 51 and 52, I cannot investigate whether there was any fault in the Council naming School C in the EHCP. I can only consider whether there was any fault on the Council’s part, in the delay using a final EHCP.
36. I can see the Council sent Mrs B a draft EHCP within the correct timeframe, after completing its annual review. It also sent a consultation to School B and received a response in good time. It referred the matter to its first available SEND panel and encouraged Mrs B to agree to complete the EHCP, so she could appeal if she disagreed with the decision.
37. Mrs B asked the Council not to issue a final plan until an EP assessment took place. That needed to take place in term time and a report was not completed until late October 2020. I cannot say this was the fault of the Council. I note the Council consulted with School B immediately after receiving the EP report and received a response within two weeks. It then passed the matter to its first available SEN panel.
38. Mrs B then asked the Council to consult with School D in December 2020. It did so immediately after the Christmas break. The response from School D took longer as it needed to go back for further information. Again, I cannot say this was due to fault by the Council. On receipt of the consultation response the Council again listed the matter for its first SEN panel and straight after this it issued a final EHCP.
39. The documentation shows the Council completed each task in timely manner and kept Mrs B up to date at all stages. Also, that the Council advised on more than one occasion that it was best to complete the EHCP in June/July 2020, so that Mrs B could then appeal if she disagreed with the named school.
40. However, it remains that the Council did not issue a final EHCP within the statutory timescales and this does amount a service failure. The Code says councils must issue a final EHCP within eight weeks of receiving the parents’ comments on the amended plan. Mrs B provided comments in May 2020, so the final EHCP should have been issued by July 2020. The final plan was not issued until March 2021.
41. I understand why the Council did not want to go against Mrs B’s wishes and complete a plan she disagreed with. However, it can issue an amended final plan without the parent’s approval. In this case, it should have done so to meet the statutory timescale. Mrs B could then have appealed the decision about which school to name in the plan. The Council could have continued to obtain an EP assessment, any other professional assessments, and consultations with other schools, during the lead up to the tribunal. This is often part of the procedure before the tribunal hearing.
42. Not completing the final EHCP allowed the matter to drift for several months, so Mrs B did not obtain appeal rights until far later than should have been the case.
43. The overall delay in obtaining a place at a school Mrs B believed was suitable caused significant distress. However, for the reasons outlined at Paragraphs 51 and 52, I cannot make any findings about what school the Council decided was suitable.
44. The fault I have found is in the delay finalising the plan and triggering Mrs B’s appeal rights. If the Council had finalised the plan in July 2020, and Mrs B appealed straight away, there is no guarantee it would have led to Y being placed at a school Mrs B considered suitable. I cannot say what the outcome of the tribunal would have been. It may have supported the Council’s decision.
45. In any case it would have taken several months before the tribunal hearing took place and, in the meantime, all the other actions such as obtaining an EP report and further consultations with schools, would have taken just as long. Therefore, even if I could say whether the tribunal would have agreed to a different school, that decision might not have been made any earlier than when the Council eventually secured Y a place at School D.
46. Therefore, the injustice to Mrs B from the delay in completing the EHCP is limited. The real distress to Mrs B comes from the Council making decisions about schools she disagreed with. I cannot investigate that part of the complaint because Mrs B could have appealed to the tribunal.
47. I recommend the Council apologise to Mrs B for the delay in issuing a final EHCP. I also recommend the Council update its procedures to ensure that, where possible, it issues all final amended EHCPs within the statutory timescales, so that parents’ appeal rights are triggered. This does not prevent the Council from continuing to work with the parent and obtain any further reports or consultations, as part of the tribunal procedure.

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Agreed action

48. The Council has agreed to, within a month of this decision:
• Apologise to Mrs B for not issuing the final amended EHCP within the required timescales
49. The Council has agreed to, within three months of this decision:
• Update its procedures to ensure that, where possible, it issues all final amended EHCP’s within the statutory timescales, so that parents’ appeal rights are available

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Final decision

50. The Council is at fault for the delay in issuing a final amended EHCP.

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Parts of the complaint that I did not investigate

51. I have not investigated the Council’s decisions about which schools were suitable for Y. This is because Mrs B could appeal the decision at tribunal. I understand the appeal right was not immediately available and have addressed any fault and injustice arising from the delay in earlier paragraphs.
52. I also understand Mrs B is concerned the delay largely occurred because the Council did not properly take account of the evidence available that a mainstream school was not suitable for Y. However, it remains that she could appeal any decision made on completion of a final amended EHCP. The tribunal would have considered whether the Council properly took account of the evidence available. Therefore, this part of the complaint is not within our jurisdiction to investigate.

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Investigator's decision on behalf of the Ombudsman