Summary: Mr F complained the Council failed to address the special educational needs of his son following the breakdown of his placement in April 2021. He also says the Council delayed issuing his son’s Education, Health and Care plan after an emergency annual review and it failed to provide him with any appropriate educational support. We find the Council was at fault for its delays during the annual review process and for failing to provide Mr F’s son with the education and specialist provision set out in his Education, Health and Care plan. The Council apologised to Mr F and his son, offered a payment for the distress caused and the lost provision, and confirmed it had learnt lessons and would implement service improvements moving forward. This is a suitable remedy for the injustice caused by fault.

The complaint

1. Mr F complained the Council failed to address the special educational needs of his son, Mr G, following the breakdown of his placement in April 2021. He says the Council delayed issuing Mr G’s Education, Health and Care (EHC) plan after an emergency annual review, and it failed to provide him with any appropriate educational support.
2. Mr F says Mr G was left at home for over a year without sufficient educational support. He also says the matter has caused anxiety and distress for the family.

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What I have and have not investigated

3. Mr F exercised his right to appeal to the SEND Tribunal about the content and educational setting listed in Mr G’s EHC plan (October 2021). The courts have said where the period out of education coincides with an appeal about an EHC plan and there is a link between them, the period from the date on which the appeal right arises until the appeal is heard is outside the Ombudsman’s jurisdiction. Therefore, I have not investigated what educational and specialist provision the Council provided to Mr G from October 2021 onwards.

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The Ombudsman’s role and powers

4. 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
5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
7. 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.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
9. 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)

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How I considered this complaint

10. I considered information from Mr F. I made written enquiries of the Council and considered information it sent in response.
11. Mr F 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

Relevant law and statutory guidance

12. 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. Section F sets out the special educational provision needed by the child or young person. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
13. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out in an EHC plan has not been provided or where there have been delays in the process.
14. Statutory guidance on special educational needs provision (Special educational needs and disability code of practice: 0-25 years) confirms that councils must review an EHC plan at least once every 12 months. The guidance says that within four weeks of the review meeting, the council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school.
15. Paragraph 9.194 says where the council proposes to amend an EHC plan, it must send a copy of the existing plan, and a notice providing details of the proposed amendments, to the child’s parent or the young person.
16. Paragraph 9.195 confirms the parent or young person must be given 15 days to comment on the proposed changes. The parent or young person can request the council name a school or institution in the EHC plan.
17. Paragraph 9.196 says that after receiving any representations form the child’s parent or the young person, if the council decides to continue to amend the EHC plan, it must issue the amended plan as quickly as possible and within eight weeks of the original amendment notice.
18. 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 (or the decision not to name a placement) 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

19. This chronology provides an overview of key events in this case and does not detail everything that happened.
20. Mr G has special educational needs and an EHC plan.
21. Mr G was attending a residential college placement (College B). The placement broke down in April 2021 after Mr G was involved in a significant behavioural incident.
22. Mr G went to live at a temporary care placement after the incident.
23. The Council attended an emergency annual review meeting on 20 May. College B explained it could no longer care for Mr G. It said it had provided him with some limited online education from 12 May, but he had struggled to engage.
24. The Council confirmed during the meeting it would amend Mr G’s EHC plan and consult with other settings. It said it would do this within the next few days.
25. Mr G ran away from the temporary care placement. He eventually returned home to live with Mr F.
26. Mr F called the Council on 11 June and asked for an update. The Council emailed College B on 14 June and asked for the annual review paperwork. It sent this on the same day.
27. The Council spoke to Mr F a few days later. Mr F explained he was going to the visit a prospective educational setting. The Council said it would consult with the setting.
28. Mr F emailed the Council on 5 July and asked for Mr G’s amended EHC plan. He also asked it to consult with residential educational settings. The Council responded and said its social care department had not identified the need for residential settings. It said it would seek a day placement.
29. Mr F instructed a solicitor to communicate with the Council. The solicitor wrote to the Council on 21 July and chased for the outcome from the annual review.
30. The Council wrote to Mr F’s solicitor on 22 July and confirmed it would amend Mr G’s EHC plan. It sent the amended plan on 6 August.
31. Mr F’s solicitor sent in their comments on 17 August.
32. The Council issued Mr G’s final EHC plan on 1 October. It left the name of the placement blank but noted it would be a mainstream further education college.
33. The Council provided Mr G with some home tuition from October onwards. It also consulted with some educational settings.
34. Mr F appealed to the SEND Tribunal about the content and educational setting listed in Mr G’s EHC plan.
35. The Council arranged for Mr G to receive occupational therapy (OT) and speech and language therapy (SALT) from January 2022 onwards.
36. The SEND Tribunal issued its final order at the end of March. It directed the Council to amend Mr G’s EHC plan in line with the working document and name a residential college (College C) as the educational settling.
37. The Council issued Mr G’s final EHC plan in April. He started a slow transition to College C.
38. Mr F complained to the Council about how it had managed Mr G’s special educational needs. He said it delayed issuing Mr G’s final EHC plan and it failed to provide him with appropriate educational support.
39. The Council responded to Mr F’s complaint. It acknowledged it should have issued Mr G’s EHC plan sooner after the annual review. It also accepted it should have provided OT, SALT, and tuition sooner. It offered Mr F £300 to acknowledge the avoidable distress, worry and frustration. It offered him £4,000 to cover the loss of education for Mr G. It also apologised for the distress caused to him and his family.
40. The Council said as a learning opportunity it would ensure it meets statutory timescales, communication between parents and professionals is timely and information shared is accurate. It also said it would ensure it updates case notes on its database and any contacts with parents and professionals is captured and recorded accurately.
41. Mr F escalated his complaint to stage two of the Council’s complaints procedure. He said its offer was unacceptable and did not accurately reflect his and Mr G’s injustice.
42. The Council issued its final response. It confirmed its offer was suitable.
43. Mr F remained dissatisfied with the Council’s response and referred his complaint to the Ombudsman.

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Analysis

44. The Council should have decided within four weeks of the annual review meeting, which was 18 June, whether it would keep Mr G’s EHC plan as it was, amend it, or cease to maintain it. The Council missed this deadline as it did not confirm it was going to amend Mr G’s EHC plan until 22 July. It did not issue a draft EHC plan until 6 August. This is fault.
45. The Council says it did not receive the annual review paperwork until 14 June. It says College B sent the paperwork to an officer on 24 May that no longer worked for it. While I note the Council’s comments, it should have had a process in place to ensure that any emails sent to officers that leave are dealt with by someone else. It should have also re-assigned the case to another member of staff to follow up the action points from the meeting. It only contacted College B for the paperwork after Mr F called for an update.
46. The Council’s faults have caused Mr F an injustice as he was put to time and trouble chasing a response and it caused him some uncertainty about Mr G’s educational provision. It also delayed his appeal rights to the SEND Tribunal.
47. With regards to the educational support, Mr G received limited online education from April to October 2021, but it was not the education set out in his EHC plan. He also did not receive any of the specialist provision, such as OT and SALT. This is fault, which caused him a significant injustice as he missed out on the education and specialist provision he was legally entitled to.
48. I asked the Council how it arrived at the figure of £4,000 for the lost education and specialist provision for Mr G. It said given the loss of education between April and October 2021, it decided £500 per month was appropriate. This is a total of £2,500. It said Mr G received some part-time education from October 2021 to April 2022 and so £250 per month was an appropriate figure, a total of £1,500.
49. Mr F says the Council’s offer falls way short. He says the delay in achieving the placement at College C would amount to a substantial sum more than £150,000. He also does not accept the Council’s offer of £300 is an appropriate amount for his distress.
50. While I appreciate Mr F does not agree, the Council’s offers are in line with our guidance on remedies for his and Mr G’s injustice. It also covers a period I have not investigated. We would not usually calculate a financial remedy based on what the cost a service would have been to a council as Mr F has suggested. The Council has also apologised, confirmed it has learnt from the faults in this case and said it would make changes moving forward. This is a suitable remedy for the injustice caused by fault and so I do not recommend anything further.

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Final decision

51. There was fault by the Council, which caused Mr F and Mr G an injustice. The Council has offered a suitable remedy for this injustice. Therefore, I do not recommend anything further.

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Investigator's decision on behalf of the Ombudsman