Summary: Mrs X complained the Council delayed making changes to her son’s Education, Health and Care Plan (EHCP) causing distress, putting her to time and trouble and resulting in her son missing the start of school. We found the Council at fault in its review of Y’s EHCP. We recommended it provided Mrs X with an apology, payment for distress, payment for time and trouble and act to prevent recurrence.

The complaint

1. Mrs X complains the Council refused to name a specialist school and amend provision in her son’s Education, Health and Care Plan (“EHCP”) until recently, despite two years pursuing this. She says she has suffered distress, been put to time and trouble and her son, Y, missed the start of secondary school.

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What I have investigated

2. I have investigated the complaint of delay from October 2019 to May 2020. I have explained at the end of this decision why I have not investigated other matters.

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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. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
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)
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))
9. 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

10. I spoke to Mrs X and I reviewed documents provided by Mrs X and the Council.
11. I gave Mrs X and the Council an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

SEN Code of Practice; Reviews

12. Councils must review an Education, Health and Care Plan (“EHCP”) at least every 12 months.
13. Within 2 weeks of the review meeting the school must provide a report to the council with any recommended amendments.
14. Within four weeks of the meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay.
15. The council must send the draft EHCP to the child’s parent and give them at least 15 days to give views on the content.
16. If a child’s parent asks for a particular school the council must name the school 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
17. When the parent suggests changes that the council agrees, it should amend the draft plan and issue the final EHCP as quickly as possible.
18. Where the council does not agree the suggested changes it may still issue the final EHCP.
19. In any event the council should issue a final EHCP to the parent and any school named within 8 weeks of issuing the draft plan. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.
20. Where a child is moving between key phases of education, e.g from primary to secondary, a council must complete the review and any amendments by 15 February in the calendar year of the transfer at the latest.

Ombudsman’s jurisdiction

21. Certain SEN decisions have a right of appeal to the Special Educational Needs and Disability Tribunal (SEND) also known as the First Tier Tribunal (FTT).
22. We have no jurisdiction where a parent has appealed to the SEN Tribunal from the date the SEN appeal right arises (i.e. when the Plan is issued not the date the appeal is lodged) until the appeal is completed.
23. The Hillingdon judgment reconfirmed that we cannot investigate a decision where it has been or could reasonably be appealed to a tribunal, it also said we cannot consider the consequences of that decision.
24. In the Hillingdon case, the child had an SEN statement (now called an EHCP) naming a school with a place available. The parent disagreed with the school named, did not send their child to the school and appealed. The parent won the appeal. They wanted a financial remedy for not having their preferred school named earlier and the missed education during the appeal. The Court of Appeal said we could not look at that period of time. The failure to provide an education did not amount to a service failure separable from the maladministration (not naming a suitable school) which we could not investigate because of s26(6).
25. We can look at any delay in the EHCP process before the appeal right arose. But often we cannot find out the extent of any injustice until after the Tribunal decision is known. This is because we do not know what the child has missed, in comparison to what they received, if there had been no delay. We usually close these cases and ask the parent to resubmit their complaint after the Tribunal outcome is known.

What happened

26. In September 2019 Y was attending a mainstream primary school, School A, in year 5. School A was named on Y’s EHCP.
27. The Council had a duty to review Y’s EHCP and name a secondary school by February 2021 at latest. This review is sometimes a called a transition review.
28. The Council carried out a “transition review” in October 2019. It has provided a copy of the review form and a report from School A. I note:
• Mrs X wanted Y to attend School B from the end of Year 5 and then remain at School B for secondary school. School B is a maintained mainstream boarding school.
• The Council recorded that Y’s current EHCP and placement remained appropriate. However, recommended a change of placement; for Y to start at School B at the end of Year 5.
• School A provided a report to the Council to say it agreed with the recommendation for Y to start at School B at the end of Year 5.
29. Mrs X says the Council told her it had passed her request for a change in placement to its panel for consideration. She chased a response and the Council said the panel had refused the request. Mrs X says she then asked for records of this meeting and a written decision to appeal but received no response.
30. The Council has not provided any records of contact with Mrs X from the review until her complaint of January 2020.
31. In January 2020 Mrs X complained to the Council about its poor communication and its decision to refuse Y a place at School B in Year 6. She suggested a specialist school, School C, may be the only alternative at this stage.
32. The Council responded in February, apologising for its poor communications which was due to staffing changes and sickness. It said it had no record of considering Mrs X’s request for School B but it would now arrange a discussion with her about this.
33. In March 2020 the Council considered Mrs X’s request for a change in placement. Documents provided show:
• The Council did not agree to fund the fees for boarding at School B;
• It would consult with School B as parental preference but it would not pay any fees for boarding or transport as this was not the nearest appropriate school;
• There was a lack of evidence Y’s current school could not meet his needs; the Council required evidence of this.
34. There is nothing to suggest the Council considered School B unsuitable or incompatible with the efficient education of others, or the efficient use of resources.
35. On 27 March the Council told Mrs X it would consult with School B but that it would not pay towards any fees. Further that it had contacted School A for any evidence to show it could not meet Y’s needs.
36. Meanwhile Mrs X had escalated her complaint, insisting the Council told her in October it would consider her request for School B. Further that it had lost documents in a data breach.
37. In its complaint response the Council:
• Accepted it did not consider her request for a change in placement following the review or provide timely updates. The relevant officer no longer worked for the Council.
• Offered £150 for its delay and a further £150 for its poor communications given the distress caused to her.
• Said she could contact the Ombudsman if she remained unhappy.
38. On 4 May the Council sent a letter of consultation to School B.
39. On 11 May 2020 the Council issued its decision to Mrs X that it would not amend the EHCP. It referred to her right of appeal. It did not say what the outcome of its consultation with School B was or explain why it had refused to name School B on the EHCP. Further, there is a lack of evidence the Council received and considered any response from School B before reaching a decision, or otherwise followed a proper decision making process.
40. In June 2020 Mrs X complained to the Ombudsman and said she intended to appeal the EHCP. We told her to contact us again after completing the appeal.
41. In July 2020 Mrs X appealed to the Tribunal on the setting and provision named in Y’s May 2020 EHCP.
42. At a Tribunal hearing in December 2020 Mrs X explained she now wanted Y to attend a specialist school, School C, from Year 7. The Tribunal explained the Council had until February 2021 to issue an EHCP naming a secondary school and so it was too early for Mrs X to appeal the Council’s decision, which was not yet due. Mrs X then withdrew her appeal.
43. The Council carried out an annual review in December 2020 and issued a final EHCP in February 2021 naming a mainstream secondary, School D.
44. Mrs X appealed the setting and provision named in the EHCP. She wanted Y to attend specialist secondary School C.
45. On 13 September 2021 Mrs X contacted the Ombudsman seeking to pursue her complaint again. She said the Council had agreed to changes in the EHCP ahead of a Tribunal hearing scheduled for 16 September 2021. The Council had finally agreed to her choice of specialist school after two years fighting for this. However, Y was now due to start school a few weeks late while the Council made final arrangements for a start date and transport.
46. On 24 September the Council told the Ombudsman the appeal was still “live”. It later provided a copy of Y’s final EHCP dated 4 October 2021, naming specialist school E.

Findings

47. Mrs X’s complaint first arose in October 2019, more than 12 months ago. However, Mrs X contacted us within 12 months and we told her to come back to us after the Tribunal. Mrs X contacted us again within 12 months of the Tribunal outcome. I therefore consider the complaint in time.
48. The Council did not follow the statutory review process following its October 2019 review. It did not keep to timescales and it did not properly consider Mrs X’s request for a change in placement. This is fault.
49. The Council accepts its communications with Mrs X were poor following its review. The Council has not provided any records but Mrs X’s account shows the Council failed to update her and then gave her incorrect information. This is fault.
50. Following Mrs X’s complaint the Council accepted fault, blamed former staff and said it would consider her request. However, documents show it then delayed consulting with School B. Further, there is no evidence to show it properly considered Mrs X’s request for it to name School B. This is fault.
51. The Council’s fault delayed Mrs X’s right to appeal such that it was too late for her to ask the Tribunal to consider a change in placement for Year 6. I cannot say what the Tribunal outcome would have been on any earlier appeal, but there was a loss of opportunity.
52. The Council’s fault caused Mrs X avoidable distress and uncertainty. She was also put to avoidable time and trouble in communications with the Council.
53. I acknowledge the Council previously offered a payment to Mrs X for it delays and poor communications. In the absence of evidence this was actually paid I have not taken this into account in calculating a personal remedy.
54. I acknowledge the Council has already accepted some fault and made service improvements. However, I am not satisfied the Council has identified and taken action to prevent recurrence of all the fault in this case. I say this because even after an officer left and even after considering the complaint, the Council did not properly decide on the change in placement. Further there was more unexplained delay. I will therefore recommend service improvements.
55. I cannot consider any complaint linked to the appeal of the May 2020 EHCP after the appeal right arose.
56. I acknowledge Mrs X is unhappy that the Council did not agree to the setting and provision she sought in its February 2021 EHCP until after she appealed. However, it is not within my jurisdiction to consider matters appealed or linked to this appeal. This includes any complaint about provision missed pending the appeal, costs arising during the appeal, or that Y started at school later due to Mrs X awaiting the appeal outcome.

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Agreed action

57. To remedy the injustice set out above I recommend the Council carry out the following actions:
58. Within one month:
• Provide Mrs X with a further written apology;
• Pay Mrs X £300 for distress and uncertainty;
• Pay Mrs X £150 for time and trouble;
59. Within three months:
• Provide training or guidance to all staff who handle EHCP reviews to ensure they are aware of the need to meet timescales, avoid undue delay and decide on the parent’s preferred setting in line with the statutory guidance.
60. The Council has accepted my recommendations.

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Final decision

61. I have found fault in the Council’s handling of Y’s EHCP review causing injustice. The Council has accepted my recommendations and I have completed my investigation.

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Parts of the complaint that I did not investigate

62. I cannot investigate Mrs X’s complaint about the setting named in Y’s May 2020 EHCP because Mrs X had a right to appeal and she did appeal. I am also unable to investigate any matters inextricably linked to that appeal from the date the appeal arose to the date it was completed.
63. I cannot investigate Mrs X’s complaint about the setting and provision named in Y’s February 2021 EHCP as she had a right of appeal and she did appeal. I am also unable to investigate any matters inextricably linked to that appeal from the date the appeal arose to the date it was completed.
64. I will not investigate any alleged breaches of data protection legislation as the Information Commissioner’s Office is the appropriate body to consider such complaints.

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Investigator's decision on behalf of the Ombudsman