Summary: Mrs X complained that due to a series of errors her son was left without a suitable school placement when term began in September 2021 and was unable to start school until December 2021. The Council’s delays and failings in the admissions and EHC process amount to fault as does the Council’s failure to ensure Y received an education and the provision specified in his EHC plan between September and December 2021.These faults have caused Mrs X and Y an injustice.

The complaint

1. The complainant, whom I shall refer to as Mrs X complained that due to a series of errors her son was left without a suitable school placement when term began in September 2021. She complains the school was unaware her son would be attending and the provision needed for her son to safely attend school was not in place until December 2021.
2. Mrs X also complained about delays and errors in the EHC plan process and failures in communication and in keeping her up to date.

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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. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. 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)
7. 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.

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How I considered this complaint

• As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mrs X;
• Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Education, Health and Care plans

8. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child'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 education or name a different school. Only the tribunal can do this.
9. An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. The key transfers are:
• early years provider to school
• infant school to junior school
• primary school to middle school
• primary school to secondary school, and
• middle school to secondary school
10. 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 engaged 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).

What happened here

11. Mrs X’s son, Y was born in the summer of 2016. The parents of a ‘summer born’ child (a child born between 1 April and 31 August) have the option not to send their child to school until the September following their fifth birthday. That is a year after the point at which they could first have been admitted.
12. Ordinarily, they would then start school in year one with their ‘chronological year group’. Parents can request their summer born children are admitted to a reception class in the September following their fifth birthday rather than year one. This means they are educated outside their normal age group.
13. In December 2019 Mrs X contacted the Council to discuss the school admission process. Y’s developmental delay was being assessed at that time and he did not yet have a diagnosis. Mrs X was unsure whether to offset Y’s reception place for a year or whether he would attend a special school. She says they were advised to apply for a mainstream school place for September 2020 in the normal way and any changes could be made later. Mrs X applied for Y to attend School 1, a mainstream school his sibling attends.
14. Y subsequently received an autism diagnosis and Mrs X applied for an EHC plan. In April 2020 Mrs X asked the Council to offset Y’s reception placement for a year. The Council advised that as Y was going through the EHC assessment process the Council would not be in a position to consider an offset request unless he was not granted an assessment or EHC plan. It suggested Mrs X could turn down the school place and explain she was awaiting the outcome of the EHC assessment request. The Council also noted Mrs X could discuss offsetting as part of the EHC assessment process.
15. In July 2020 the Council consulted with School 1 and sent it a copy of the draft EHC plan. School 1 confirmed it was happy to be named in Y’s EHC plan. It also noted Mrs X wanted to defer Y’s placement until September 2021 and confirmed it supported this decision. However, School 1 requested a review of funding before Y was allocated a space at the school and before it confirmed it could meet Y’s needs.
16. Mr and Mrs X also responded to the draft EHC plan and asked the Council to offset Y’s reception year and to name his current nursey in the plan rather than School 1. In August 2020 the Council issued a final EHC plan naming Y’s nursery and confirming Y had been offset by a year.
17. In September 2020 Mr and Mrs X confirmed her school preferences to the transition reviews team. They expressed a preference for School 2, a specialist school, and School 1 if Y’s speech and understanding had improved by the time he was due to attend.
18. In late November 2020 the Council again consulted with School 1 regarding a place for Y in September 2021. In January 2021 it then issued a draft plan, proposing School 1 as Y’s placement from September 2021. Mr and Mrs X disputed the draft plan as they did not consider a mainstream school would meet Y’s needs. They asked the Council to name School 2 in the EHC plan from September 2021.
19. Mrs X also complained they had received incorrect advice in December 2019 which was now affecting Y’s application to School 2. She complained they had not been told that Y could have been offset for a year because of his age, regardless of his pending EHC assessment. Had she known, Mrs X would not have applied for School 1. Mrs X asserted School 1 could not meet Y’s needs and believed School 2 was the best choice for him.
20. The Council’s response confirmed the initial advice provided was correct as Y did not at that time have an EHC plan. It could therefore only offer a mainstream setting as it was not possible to offer a specialist placement. The Council confirmed it would now issue a final EHC plan naming School 1. The Council issued the final EHC plan on 12 February 2021
21. Mrs X remained unhappy and queried why they were not originally advised to offset without needing to apply for a school place. Mrs X then sought independent advice and confirmed she intended to appeal the EHC plan and pursue a formal complaint.
22. In April 2021 Mrs X attended mediation with the Council to try and resolve the matter. The outcome of the mediation was to hold an annual review of Y’s EHC plan and that Mrs X would receive an updated plan by 4 June 2021.
23. Following the annual review, Mrs X asked the Council to consult with School 2 and another specialist school, School 3. The Council agreed but explained that if the schools responded that they were full Mrs X may still need to appeal to the tribunal.
24. As Mrs X had not received the draft plan by the deadline, her representative, Ms Y chased the Council for an update. They also questioned whether the Council had consulted School 3 as requested. The Council confirmed it had contacted the Educational Psychologist (EP) for clarification regarding the support Y would need at school. It explained it was unable to amend the EHC plan without this professional advice. The Council also confirmed it had consulted with School 3 and would contact Mrs X when it received a response.
25. Ms Y questioned why the Council had contacted the EP as this had not been agreed at the annual review. She also queried whether the Council had reconsulted School 1 with up to date information as School 1 had told Y’s nursery they were unable to meet his needs.
26. The Council acknowledged it had not met the mediation timescales and reiterated it could not amend an EHC plan without a report from a specialist to confirm what provision was needed. Nursery had indicated they needed more support which needed to be substantiated by a report from the EP. It confirmed School 3 had now been consulted and a response was due by 15 July 2021.
27. In late June 2021 the Council sent School 1 a ‘new Final Amended EHC plan’, again naming School 1 from September 2021 and confirmed the funding allocated to meet Y’s needs. The Council has not provided a copy of an EHC plan dated June 2021 and there is no record it sent a copy of this plan to Mrs X.
28. The Council’s records show School 1 contacted the Council in early July 2021 to request additional support for Y as they were unaware he was due to start at the school in September 2021. There is no record of any additional advice or support provided.
29. The Council received updated EP advice on 9 July 2021. This suggested the support Y received at nursery would need to be doubled once he started school. There is no record the Council informed Mrs X or School 1 of this updated advice. Mrs X says School 1 contacted them on 19 July 2021 to say they could not meet Y’s needs.
30. The Council states School 1 confirmed on 4 August 2021 that they were expecting Y to start at the school in September 2021. Miss X disputes this as the school will have been closed for the summer. The Council has not provided evidence of this contact with School 1. It states its records show that on 6 September 2021 Y was on roll at School 1.
31. On 9 September 2021 Mrs X complained that the Council was breaking the law as it had not provided a school place for Y. She said School 1 had confirmed it could not meet Y’s needs and that he did not have a place there. Mrs X also complained officers had not responded to her correspondence or returned her calls and she had still not received Y’s new EHC plan which should have been issued by 4 June 2021. She confirmed they had now appealed to the Tribunal and had a hearing date for January 2022.
32. An officer discussed the issues with Mrs X and agreed to contact School 1 regarding Y’s needs. The officer subsequently wrote to Mrs X confirming the Council had allocated Y a school place, albeit not Mrs X’s preference, and School 1 remained legally responsible for Y’s education. The officer had asked School 1 to contact the Council for further support and guidance. They acknowledged Mrs X did not want to send Y to School 1 and confirmed the Council would work with the school to ensure Y was supported. In addition the officer confirmed the Council would raise further consultations with Schools 2 and 3.
33. In late September 2022 School 3 confirmed it could offer Y a place for September 2022. School 2 also responded to the consultation and confirmed that while it could meet Y’s needs, it did not currently have any places available.
34. In order to end tribunal proceedings, the Council agreed in October 2021 to amend the EHC plan to name School 1 until July 2022 and School 2 from September 2022. The Council then issued a final amended EHC plan in these terms in November 2021.
35. Mrs X states Y was unable to started at School 1 until December 2021, when appropriate provision was put in place.
36. Mrs X made a formal complaint to the Council in March 2022. She complained about failings in the admissions process and in the EHC plan process. The Council responded in late April 2022. It identified 24 separate concerns and responded to each in turn.
37. The Council upheld or partially upheld a number of these concerns, including failings in communication in a number of areas; not issuing a draft EHC plan within the timeframe agreed at mediation; and failings in the transition arrangements. There were also a number of complaints which the Council did not uphold. The Council did not accept it was responsible for errors in the initial consultation response from School 3, or for checking school registers.
38. The Council also maintained a place was available for Y at School 1 from September 2021. It asserted School 1 had been aware Y would be attending since 2020 and had confirmed in August 2021 it was expecting Y.
39. In addition the Council confirmed it had consulted School 3 on 25 June 2021, but they confirmed they had allocated all of their places for September 2021 by 12 May 2021. It apologised that Mrs X was not aware of School 3’s response until September 2021.
40. Mrs X was not satisfied by the Council’s response and asked for her complaint to be considered at the next stage of the process. Mrs X was concerned the about the accuracy of the Council’s records. She had contacted School 1 who had confirmed they had not spoken to the Council in August 2021, nor had they confirmed they were expecting Y. Mrs X maintained there was not a place available at School 1 for Y in September 2021.
41. In addition Mrs X asserted that had the Council consulted School 3 immediately following the mediation in April 2021, there would have been a space available for Y for September 2021. The Council again responded to each of Mrs X’s concerns in turn, expanding on its comments in the initial response.
42. In relation to Mrs X’s main complaint that Y did not have a school place for September 2021, the Council was satisfied there was clear evidence of a place at School 1. And that School 1 was expecting him and resources/ funding had been allocated through the EHC plan.
43. The Council also concluded:
• The SEND team was not responsible for checking school registers for attendance;
• The Council fund any identified support / training, but it is the school/setting’s responsibility to recruit, retain, train, and provide support;
• There were human errors in dealing with Y’s case for which the SEND team had apologised;
• There had been delays in some aspects of case work; and
• Communication with Mrs X could have been improved.
44. However the Council did not accept that delays or oversights were the cause of the negative response from School 3 or were why a place at this preferred setting was not available.
45. As Mrs X remains dissatisfied she has asked the Ombudsman to investigate her complaint.

Analysis

46. It is clear from the documentation that there have been failings in the way the Council has dealt with both the admission process and the EHC plan process. The Council also accepts its communication with Mrs X could have been better.
47. As Y is a summer born child, Mrs X could ask to offset his school admission until September 2021 regardless of any EHC plan. However there is no evidence the Council properly advised Mrs X regarding this. The Council considers the initial advice to apply for a mainstream school was correct as Y would not at that time have been considered for a special school. This may correctly reflect the position regarding special schools but does not address Mrs X’s query regarding the possibility of offsetting the place based on Y’s age. I consider the failure to properly advise Mrs X in this respect to be fault.
48. School 1 was named in Y’s EHC plan of February 2021, as a placement from September 2021. Mrs X and School 1 disagreed with this placement, but the Council has an overriding power to name the school. School 1 received a copy of the plan in February 2021 and should therefore have been aware Y would be attending from September 2021.
49. I have not received any evidence School 1 confirmed to the Council in early August 2021 that it was expecting Y at the start of term. But am satisfied School 1 was aware in the summer of 2021 that Council expected the school to admit Y in September 2021 as it asked the Council for additional support. I have not received a record of any support or advice provided. Nor is there any evidence the Council subsequently informed School 1 of the updated EP advice regarding the increased level of support Y would need at school, compared to nursery.
50. Consequently, whilst School 1 was aware Y was due to start at the school in September 2021 it is questionable whether it had full or sufficient information about the support Y would require or how this would be provided. This provision was not in place until December 2021.
51. The Council had agreed at the mediation meeting to amend Y’s plan by 4 June 2021. It did not meet this deadline, but states it issued a new plan on 30 June 2021. However, the documentation available does not support this claim.
52. The Council sent School 1 a ‘new’ EHC plan in June 2021 but it is unclear whether this was in fact a new plan. The Council has not provided a copy of the June 2021 plan or identified whether it contained any amendments. It did not send a copy of the plan to Mrs X and had told her it could not amend Y’s plan without input from the EP, which it did not have until July 2021. There is also no reference to a June 2021 plan in the version history of the EHC plan issued in November 2021. I am not therefore persuaded the Council issued a new EHC plan in June 2021 but rather that the Council missed the agreed deadline by some five months. The failure to meet the deadline and delay in issuing a new EHC plan is fault.
53. It is unfortunate that School 3 was unable to offer Y a place for September 2021, but I do not consider this was due to fault by the Council. I recognise there was a delay in consulting School 3, but am not persuaded this would not have affected the outcome. The Council took over a month to consult School 3 following Mrs X’s request on 18 May 2021. However, School 3 had allocated all of its places by 12 May 2021.
54. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.

• When a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment to acknowledge the education they have missed and help them to catch up. In determining an appropriate level, we will take account of factors such as:
• The child’s SEN;
• Any educational provision that was made during the period;
• Whether additional provision now can remedy some or all of that loss; and
• Whether the period affected was a significant one in a child’s school career, for example the first year of compulsory education.

55. Given Y’s age, the stage of his education, the provision available and the education and support he missed I consider a payment of £200 a month would be appropriate.

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Agreed action

56. The Council has agreed to apologise to Mrs X for the delays and failings in the admissions and EHC process. And for the failure to ensure Y received an education and the provision specified in his EHC plan between September and December 2021.
57. The Council has also agreed to pay:
• £600 to Mrs X to be used for Y's educational benefit, to acknowledge the impact of the loss of education September and December 2021.
• £300 to Mrs X in recognition of the distress and anxiety she experienced and the time and trouble she was put to as a result of the Council’s failings.
58. The Council should take his action within one month of the final decision on this complaint. It should provide us with evidence it has complied with the above actions.

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Final decision

59. The Council’s delays and failings in the admissions and EHC process amount to fault as does the Council’s failure to ensure Y received an education and the provision specified in his EHC plan between September and December 2021.These faults have caused Mrs X and Y an injustice.

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Investigator's decision on behalf of the Ombudsman