Summary: Ms X complained about delays in the annual review process for her daughter, Y, that the Council was not providing Y with suitable education and about poor complaint handling. The Council is at fault. It has not provided Y with suitable education between April and December 2022, delayed finalising Y’s Education, Health and Care (EHC) Plan and handled Ms X’s complaint poorly. It will now finalise Y’s EHC Plan and pay Ms X £1800 in recognition of Y’s lost educational provision and £500 for distress caused to her. It should also act to improve its services.

The complaint

1. Ms X complained:
• The Council delayed considering her request for a special school for her daughter, Y, following an annual review meeting in February 2021. She says the Council only told her the panel had refused the request on 20 October 2021.
• She has still not received a final amended EHC Plan, following an emergency annual review held in November 2021.
• Of poor complaint handling and delay responding to her complaint.
2. She says the delays and poor communication means Y has not accessed the education she needs and is currently not attending a suitable school. The delay finalising the EHC Plan has prevented her from accessing her right of appeal to the SEND tribunal. It has also caused her frustration and distress.
3. She wants the Council to provide suitable specialist education to meet Y’s needs and improve its services.

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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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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.
7. 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)
8. 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

9. I read Ms X’s complaint and spoke with her about it on the phone.
10. I made enquiries of the Council and considered information it sent me. I also considered information provided by Ms X.
11. I considered our guidance on remedies.
12. Ms X and the Council had the opportunity to comment on the draft decision. I considered their comments before making a final decision.

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What I found

Background information

Education, Health and Care Plans

13. 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 SEND tribunal can do this.
14. The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance.
15. 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)
16. 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)
17. 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.

The sufficiency duty

18. Councils have a duty to provide education to every child or young person of compulsory school age (age 5-16) in its area. It must keep its educational provision under review to ensure the provisions available are sufficient to meet the needs of its children and young people. The education provided must be suitable. The Education Act 1996 defines suitable education as “efficient education suitable to [a child’s] age, ability and aptitude and to any special educational needs he may have.”

The Council’s complaints policy

19. Councils must have a policy to support the effective handling of complaints. The Council’s policy has two stages.
• Stage One – Initial Review. The Council will acknowledge the complaint within five working days. It will provide a complaint response with 10 working days of the acknowledgement.
• Stage Two – Further Review. The Council will acknowledge the complaint within five working days. It will complete a review a provide a further response within 20 working days of the acknowledgement.

What happened

20. Ms X’s daughter, Y has medical conditions and special education needs. In January 2021, Y had an EHC Plan and attended a mainstream school, School A. Y was in Year 1.
21. School A held an annual review of Y’s EHC Plan in February 2021. At the annual review, Ms X said she felt Y needed a special school and that she would like this to be in place by the start of Key Stage 2 (September 2022) at the latest. School A said that despite a high level of support, Y was struggling to meet her early learning goals and supported Ms X’s view that Y needed a special school. It said Y would struggle with a more formal curriculum even in Year 2, and it would be unfair for Y to remain in a mainstream school for Key Stage 2 as she was already behind her peers and her needs were very complex.
22. Ms X wrote a letter to the Council stating she would like Y to attend a local special school, School B. She explained how she felt School B could meet Y’s needs. Ms X says the Council told her it would consider the request.
23. The Council sent Ms X a draft amended plan on 20 May 2021. The named placement was blank and the Council asked Ms X to tell it which school she wanted Y to attend and the reasons for this.
24. School A emailed the Council. It asked the Council whether it had considered the request for a special school as School A agreed that mainstream would be inappropriate for Y for Key Stage 2. The Council did not respond.
25. At the end of July, Ms X complained to the Council. She said the Council had not finalised the plan within eight weeks of sending the proposed amendments and this was now late. She asked the Council to finalise the EHC Plan.
26. The Council responded to Ms X at the end of August. It upheld her complaint and apologised for the delay finalising the plan. It said it would finalise the plan within three days.
27. Two days later, the Council issued the final amended plan. The plan named school A as Y’s educational placement. The cover letter told Ms X how to request mediation and the process of lodging an appeal to the SEND tribunal, if she was dissatisfied with the content of the plan. Ms X did not use her right of appeal.
28. In September 2021, Y was diagnosed with a visual impairment. On the advice of Y’s paediatrician, Ms X requested an emergency review of Y’s EHC Plan, so the additional impact of her visual impairment could be considered and appropriate provisions and support related to this could be included in the plan.
29. School A held an annual review in November 2021. The meeting recommended the Council amend Y’s plan. Ms X said she remained of the view Y needed a special school and had set out her preferred schools and reasoning for this in the letter presented at the February 2021 annual review. School A confirmed it agreed with Ms X’s view that Y needed a special school.
30. In December 2021, Ms X complained to the Council. She complained about poor communication and that the Council had not told her or School A that its panel had refused the request for a special school before it had finalised the plan and named School A in August 2021. This had denied her the opportunity to provide more information to support the request.
31. The Council acknowledged her complaint but did not provide a response.
32. In January 2022, the Council considered and approved the request for a special school for Y. It did not tell Ms X of this decision.
33. On 15 February 2022, the Council sent Mrs X a draft amended EHC Plan. It sent out consultation requests to Y’s school, School A, Ms X’s preferred special school (School B), and two other special schools (School C and School D). It asked each school if it could meet Y’s needs and had a place for an immediate start. School A said it could continue to try and meet Y’s needs but agreed with Ms X that Y needed a special school due to the complexity of her needs. School B said it could meet Y’s needs, but did not currently have a space. School C said it was not suitable as it currently only delivered secondary provision for children in Year 6 and above. School D said it was currently full and had no spaces.
34. Ms X complained to the Council at the end of March 2022. She complained about the delay in finalising Y’s plan after the annual review meeting in November 2021. She said she had requested a special school for Y but had not received an update on this. She also said she had complained in December 2021 but the Council had not responded.
35. Ms X brought her complaint to us. The Council told us it would investigate her complaint, and so we asked Ms X to await the Council’s response.
36. In May 2022, the Council sent Ms X a stage one response. It upheld her complaint. It said it had been unable to finalise the plan as despite consulting, no suitable school had capacity. It said it would continue to try and find a suitable placement for Y.
37. Ms X remained dissatisfied and asked to escalate the complaint to stage 2. She said:
• The Council had not addressed the issues raised in her December 2021 complaint, as directed by the Ombudsman.
• A lack of capacity in its special schools was not a reason for delaying issuing the final EHC Plan.
• She still had not received a final amended EHC Plan.
38. The Council completed a further review and responded to Ms X in June 2022. It said it had received no directive from the Ombudsman related to the December 2021 complaint. It apologised for not finalising the EHC Plan. It said it was currently unable to name a suitable special school as none had capacity. It said it would finalise the plan naming School A and would do so within two days. It would continue to consult and to try and find a suitable special school for Y.
39. Ms X brought the complaint back to us in July 2022. In September 2022 she told us the Council had still not finalised Y’s plan, further delaying her right of appeal to the SEND Tribunal.
40. In response to our enquiries, the Council told us:
• It first considered her request for a special school in January 2022. It cannot find any evidence that it told her of its decision so cannot say if there was delay.
• It accepted it had not finalised Y’s plan in June 2022 as it had agreed in its complaint response. It said this was missed in error.
• All specialist schools it had consulted with were currently full. Its view was that school A could meet Y’s needs until a suitable special school was found.
• It accepted it had failed to respond to her December 2021 complaint within the timescales set out in its policy. It said this was an administration error.
41. As a remedy for the faults and injustice caused, the Council offered to:
• Apologise to Ms X for the delay finalising Y’s EHC Plan and for its poor complaints handling.
• Pay Ms X £200 in recognition of the distress caused and time and trouble she has taken to resolve her complaint.
• Finalise the plan by 21 October 2022.
• Remind staff of the need to adhere to the timescales within its complaints policy.
42. In November 2022, Ms X told us the Council had still not finalised the plan.
43. In December 2022 Ms X provided an email sent to her by the Council in January 2022 where the officer said its panel did consider her request for a special school for Y in May 2021, but the request was refused at that time.
44. She said Y had not attended school A since September 2022, despite still being on roll there. This was because:
• the stress of getting Y there each day had negatively affected her health,
• given it had already been nine months since it agreed Y needed a special school, she had thought the Council would offer Y a special school place imminently, and
• support she had previously relied upon to help her transport Y each day was no longer available.

She said Y had received no education for the whole autumn term between September to December 2022.

45. Ms X told us in mid January 2023 that the Council had still not finalised Y’s plan.

Analysis

Ms X’s request for a special school in February 2021

46. The email provided by Ms X says her request for special school was considered in May 2021 but refused. She said it told her of this decision in October 2021. In its response to our enquiries, the Council told us it first considered the request at its panel in January 2022. This is a conflict of evidence, but in light of the email Ms X provided, it is more likely than not that the Council did consider the request in May 2021. Regardless of this, Ms X had a right of appeal against the decision once the final plan was issued in August 2021.
47. The Council should have finalised the plan by mid-July 2021. It did not do this until the end of August 2021. This delay was fault. The delay finalising the plan delayed Ms X right of appeal about the named placement to the SEND Tribunal. However, Ms X did not use her right of appeal when the plan was finalised, so I cannot say the delay caused a significant injustice. The Council apologised to her for the delay finalising the plan in its August 2021 complaint response. This is an appropriate remedy for the frustration caused by the delay.

Delay finalising the plan after the November 2021 Annual Review

48. The Council sent Ms X a draft amended 15 February 2022. Following this, it should have finalised the plan within eight weeks (12 April 2022) but did not. It then told her in June it would finalise the plan within two days but did not. The Council told us it would finalise the plan by 21 October 2022. Ms X told us in November 2022 and mid January 2023 that it had still not finalised the plan.
49. The delay finalising Y’s plan is fault. This has caused Ms X frustration and distress and delayed her right of appeal to the SEND tribunal.
50. The Council has said the delay is due to the lack of availability of a suitable school place. However, the Council has a duty to ensure it has sufficient educational provision available to meet the needs of children in its area. Where there is no suitable maintained school in a council’s area, we would expect a council to consider non-maintained, out of area or private schools, in order to meet its duty to provide suitable education. I have seen no evidence the Council has done this. The Council’s failure to find a suitable educational provision for Y is fault.
51. The Council has told us its view is that School A can meet Y’s needs until a place at a suitable special school is found. However, this is inconsistent with:
• Advice from School A as evidenced in the records of two annual reviews in February and November 2021 which showed Y was struggling to meet her early learning goals and that it agreed Y needed a special school.
• The Council’s panel agreeing Y needed a special school in January 2022.
• The Council’s decision to consult with three special schools in February 2022 for immediate start.
52. The evidence shows Y’s needs cannot be met in a mainstream primary school. But for the faults, Y would have started at a suitable special school that could meet her needs from April 2022.

Complaint handling

53. The Council accepted it did not respond to Ms X’s December 2021 complaint and this was fault. I agree with this finding. Its policy says it will provide a response within 10 working days, but it only provided Ms X with a complaint response in May 2022. This was after Ms X had contacted us and we asked it to consider her complaint. The delay caused Ms X frustration and distress and time and trouble having to contact us.

Consideration of remedy

54. The Council has offered to apologise to Ms X for the delay finalising the EHC Plan and poor complaint handling. It has also offered her £200 for distress and time and trouble. It said it would finalise the plan by 21 October 2022 but has not done so. Y remains without a suitable educational placement and the lack of finalised plan means Ms X has no right of appeal. The remedy offered by the Council is insufficient to remedy the injustice caused to Ms X and Y.
55. But for the fault, Y would have started at a special school in April 2022. Y has missed out on two terms suitable education. Between April to July 2022 Y continued to attend school A and did receive some education, despite this not being suitable provision for her special educational needs. Between September to December 2022, although still on the school A’s roll, Y has not attended school A and has received no education at all. This is an increased injustice for Y. Although I understand Ms X’s reasons for not taking her to school A from September 2022, Y was still on roll and could still have accessed this education. I have considered the evidence and recommended a suitable remedy for Y for lost suitable provision below, based on our guidance on remedies.
56. The delay finalising the plan has also delayed Ms X’s right of appeal to the SEND tribunal. Although I cannot know what the outcome of a SEND tribunal would be, the lack of appeal right has caused Ms X frustration and uncertainty. The poor complaint handling has also caused Ms X distress, particularly as it upheld her complaint in June 2022 and told her it would finalise the plan within two days but then did not.

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Agreed action

57. Within two weeks of the final decision, the Council will:
• Finalise Y’s EHC Plan.
58. Within a month of the final decision, the Council will:
• Write to Ms X to apologise for the faults identified.
• Pay Ms X £1800 to be used for Y’s educational benefit, in recognition of the failure to provide Y with suitable education from April 2022 to December 2022.
• Pay Ms X £500 in recognition of the frustration and distress caused by the failure to finalise Y’s EHC Plan since April 2022 leading to loss of appeal rights and its poor complaint handling.
• Review how it missed responding to Ms X’s December 2021 complaint and take action as needed to prevent recurrence of the fault. It should also remind staff of the need to adhere to the timescales within its complaints policy.
• Remind relevant officers of the need to finalise EHC Plans in accordance with statutory timescales.
59. Within three months of the final decision, the Council will:
• Discuss the findings of this case at an appropriate committee or cabinet meeting. This is to ensure the Council’s leaders have awareness of the faults identified and can consider if actions are needed.
• Review its school planning and commissioning arrangements to ensure the special educational provisions available are sufficient to meet the needs of children and young people with special educational needs in its area. If gaps in provision are identified, it should produce an action plan for how it will address any shortfall.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. I have completed my investigation. I have found fault and the Council has agreed action to remedy the injustice caused and improve Council services.

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Investigator's decision on behalf of the Ombudsman