Summary: We will not investigate this complaint about delay in the Council accepting the transfer of Ms X’s child’s Education, Health, and Care (EHC) plan, about delay in issuing a final EHC plan, and of the Council failing to provide the provisions within the EHC plan. This is because the Council has agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused to Ms X. We will not investigate Ms X’s other complaints because there is insufficient evidence of fault and significant injustice.

The complaint

1. Ms X complains about delay in the Council accepting the transfer of her child’s Education, Health and Care (EHC) plan and about delay in issuing a final EHC plan. She also complains the Council failed to provide the provisions within the EHC plan as it has not provided transport to school or paid for the school placement.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
4. 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.
5. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement,

(Local Government Act 1974, section 24A(6))

6. 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)

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How I considered this complaint

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Ms X, child, Y, moved into the Council’s area in November 2021. Y’s EHC plan should have transferred to the Council either on the day of the move, or within 15 working days of the new local authority becoming aware of the move, if later than the day of the move.
10. The Council said it was not made aware of the Ms X’s move to the area until December 2021 and that the previous local authority did not notify the Council until January 2022. This means the Council should have transferred the EHC plan by early January 2022.
11. The Council accepted it delayed in transferring the EHC plan as it did not formally accept the transfer until February 2022. However, the Council said the delay was due to needing paperwork for proof of address.
12. The Council also confirmed that Y’s previous EHC plan did not name a school placement, instead it named a type of school; maintained special provision. Y’s previous local authority confirmed that Ms X had made private arrangements for Y to attend School A, but this school was not named in Y’s EHC plan.
13. During a transfer to another local authority, the receiving authority must continue to provide the provisions set out in the EHC plan, including the educational placement named in the plan. However, as no school was named in Y’s EHC plan at the point of transfer, the Council had no duty to fund the placement at School A.
14. The Council considered the case at the end of January and declined to agree to funding the placement at School A. The case review panel instructed the Council to put in place interim tuition while the Council consulted with another school. The Council confirmed its educational placement offer for the academic year 2021/22 was School B. However, it recognised Ms X stated she would self-fund the placement at School A until July 2022.
15. The Council should have completed a first review of Y’s EHC plan within three months from the date of the transfer. Therefore, the Council should have completed its review by early March. The Council should then have issued Y’s final EHC plan within 12 weeks of the review. Therefore, the Council should have issued Y’s final EHC plan by early June 2022.
16. However, the Council did not issue Y’s final EHC plan until July 2022. Therefore, there was a delay of around one month. I am satisfied this delay will have frustrated Ms X’s right of appeal as she could not appeal until the final EHC plan was issued. I am not persuaded the delay means the Council should pay for the school fees for School A. This is because there is no way for me to know what decision the Tribunal would have made had Ms X appealed. In addition, it remains the case School A was not named in the EHC plan that was transferred and so the Council had no duty to fund the placement.
17. The July 2022 final EHC plan noted Y’s needs could be met in a maintained school/college but that Ms X’s preference was for Y to attended School A. It noted Ms X would fund the placement until July 2022. The educational placement from September 2022 onwards was named as School C.
18. An investigation is not justified as we are unlikely to find fault with the Council’s decision to not fund the placement at School A. This is because Y’s EHC plan on transfer did not name School A as Y’s placement. In addition, while the Council accepted there was a slight delay in completing the EHC transfer, I do not consider this fault caused any significant injustice. This is because Y continued to attend School A without interruption and the Council did take action to source an alternative placement for Y, which was available to them, from the end of January 2022.
19. Any dispute regarding the educational placement for Y from September 2022 onwards carries a right of appeal. If Ms X disagrees with the placement named, it is reasonable to expect her to appeal to the SEND Tribunal.
20. The Council has accepted it delayed in issuing Y’s final EHC plan following the transfer of the plan. We therefore asked the Council to consider remedying the injustice caused by making a financial payment of £100.

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Agreed action

21. To its credit, the Council agreed to resolve the complaint and has agreed to make a financial payment of £100. The Council will complete this within four weeks of the date of the final decision.

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Final decision

22. We have upheld this complaint because the Council has agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused to Ms X. We will not investigate Ms X’s other complaints because there is insufficient evidence of fault and significant injustice.

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Investigator's decision on behalf of the Ombudsman