Summary: Mr X complained about how the Council handled the transfer of his daughter, Miss Y’s Education, Health and Care Plan when they moved into the area. We find fault which left Miss Y without an education, or the provision detailed in her Education, Health and Care Plan for two years. The Council has agreed to apologise, makes a payment to Mr X and improve its services.

The complaint

1. Mr X complained about how the Council handled the transfer of his daughter, Miss Y’s EHC Plan when they moved into the area. In particular, Mr X says:
1. Suggestions made by Council to support Miss Y were inappropriate and would not meet her needs.
2. The Council’s decision not to agree the additional therapies listed in Miss Y’s EHC Plan without explanation is unlawful.
3. The Council failed to complete an annual review of Miss Y’s EHC Plan for the two years they resided in the county.
4. The Council failed to provide Miss Y with an education for the two years they resided in the county.
5. There has been a significant delay in the Council’s complaint handling.
2. As a result, Miss Y’s education and her mental health have been impacted.
3. Mr X wants the Council to review their practises to prevent this from happening again in the future and to compensate his daughter.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

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. Mr X was aware of areas of his complaint as early as September 2021.
9. Mr X has shared the extenuating circumstances taking place during that time which meant he was unable to complain to the Council or the Ombudsman. Mr X did obtain the support of an advocate in November 2022 to help, however the Council did not respond to the advocate’s contact or contact Mr X at this time. In November 2023, Mr X was able to complain to the Council, and brought his complaint to the Ombudsman in May 2024. I have considered the reasons why Mr X delayed bringing the complaint and accept he was unable to complain earlier. I will investigate Mr X’s entire complaint.

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How I considered this complaint

10. I considered Mr X’s complaint and the Council’s responses. I also discussed the complaint with Mr X.
11. I referred to the Ombudsman’s Guidance on Remedies (a copy of which can be found on our website).
12. I have considered relevant law and statutory guidance including:
• The Children and Families Act 2014 (‘The Act’)
• The Special Education and Disability Regulations 2014 (‘The Regulations’)
• The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)
13. Mr 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

14. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
15. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
16. 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.

Transfer

17. Where a child or young person moves to another council:
• The ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later.
• The new council must, within 6 weeks of the date of transfer, inform the child’s parent or young person:
1. That the EHC plan has been transferred;
2. Whether it proposes to make an EHC needs assessment; and
3. When it proposes to review the EHC Plan.
• The new council must review the EHC Plan either within twelve months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Regulation 15 Special Educational Needs and Disability Regulations 2014)  
18. The EHC plan is to be treated as if it had been made by the new authority on the date on which it was made by the old authority and must be maintained by the new authority. (Section 15 Special Educational Needs and Disability Regulations 2014)  
19. The requirement for the child or young person to attend the educational institution specified in the EHC plan continues after the transfer. However, where attendance would be impractical, the new authority must place the child or young person temporarily at an appropriate educational institution other than that specified – for example, where the distance between the child or young person’s new home and the educational institution would be too great – until the EHC plan is formally amended. The new authority may not decline to pay the fees or otherwise maintain the child at an independent or non-maintained special school or a boarding school named in an EHC plan unless and until they have amended the EHC plan. (Regulation 15 Special Educational Needs and Disability Regulations 2014)  

Personal budget

20. A Personal Budget is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.

What happened

21. Miss Y has additional needs. The family previously lived in a different council area. That council issued Miss Y with a final EHC Plan in August 2020 which it later amended and finalised in July 2021. The EHC Plan named a specialist school to support Miss Y’s needs, alongside an Education Otherwise Than At School (EOTAS) programme, and a personal budget.
22. In August 2021, Miss Y and her family moved to the Council’s area. Miss Y was 18 years old at the time.
23. In September 2021, the Council received Miss Y’s EHC Plan from the previous council and says it adopted it in the same month. It was not possible for Miss Y to continue to attend her previous school because her new home was too far away.
24. The Council has stated it offered to help Miss Y with information regarding local educational colleges and employability programmes, however these offers were not taken up. It also says in October 2021, it suggested a scheme that could meet Miss Y’s needs. However, Mr X felt that the suggestions were unsuitable, noting the scheme offered was a five-day-a-week programme that Miss Y would not be able to manage.
25. In November 2021, Mr X, Miss Y’s parent, emailed the Council requesting a bespoke EOTAS package to meet Miss Y’s educational and therapeutic needs as detailed in her EHC Plan. He informed the Council that Miss Y did not wish to attend college at that time and expressed concerns that attending may negatively affect her health.
26. In December 2021, the Council sent Miss Y’s EHC Plan to a local college to assess whether it could meet her needs. The college responded in January 2022, encouraging Miss Y to apply.
27. In January 2022, the Council’s Commissioning Panel considered Mr X’s request for EOTAS. The Council said it would support the academic provision requested until July 2022, but the therapeutic activities requested would not be supported through an educational personal budget. When Mr X was told about the Council’s decision, he asked for an appeal as the therapies requested are listed in Miss Y’s EHC Plan. The Council thanked him for his response and acknowledged his appeal request.
28. In November 2022, an advocate supporting the family contacted the Council about Miss Y’s EHC Plan. The Council did not respond to the advocate.
29. In July 2023, the family moved out of the Council’s area.
30. In November 2023, the Council sent a letter to Mr X proposing to cease Miss Y’s EHC Plan. In response to the letter, Mr X raised a formal complaint with the Council. He complained the Council failed to conduct two annual reviews for Miss Y and that its proposal to cease the EHC Plan was unlawful. Mr X told the Council they had since moved out of the Council’s area but did not want the EHC Plan to cease. Later in the month the Council informed Mr X it had decided not to cease the Plan.
31. In December 2023, the Council responded to Mr X’s complaint. It apologised for not conducting an annual review whilst Miss Y was in its area. The Council explained its priority had been to source an appropriate provision for Miss Y, and an annual review would have followed once this was in place. The Council also acknowledged that it should have contacted the family after receiving contact from the advocate. The Council said it had identified areas of learning and was working hard to improve the annual review process for families, with regular progress checks to ensure suitable provision and progress. It also said case officers were reminded to make and document contact with families.
32. The following day, Mr X escalated his complaint to stage 2, which the Council acknowledged in January 2024.
33. In February 2024, the Council apologised for the delay in handling the complaint, citing high workloads. It said it would update him the following week with an expected date for a final response. The Council also asked Mr X when he moved, and the name of the new authority, to assist with the response.
34. In May 2024, Mr X contacted the Council after receiving no further correspondence. The Council explained that it had not been able to proceed with reviewing the complaint because it was still waiting for the required information. It said if he provided the information it would respond.

My findings

35. Legislation and government guidance clearly sets out the steps and timelines councils must follow when a child or young person with an EHC plan moves to a new area. The Council received Miss Y’s EHC Plan from the previous council in September 2021. However, there is no evidence that within six weeks of the transfer, the Council informed Mr X that the Plan had been transferred, whether it intended to carry out a needs assessment, or when it planned to review the EHC Plan. This is fault.
36. After receiving Miss Y’s EHC Plan in September 2021, the Council should have ensured the provision in the EHC Plan began within 15 days. Although the Council says it adopted Miss Y’s EHC Plan, it did not arrange for Miss Y to be placed temporarily at an appropriate education setting while the EHC Plan was formally amended. This is fault. Additionally, the EOTAS package and personal budget specified in Miss Y’s EHC Plan were not provided. This is fault.
37. Although the Council said it provided information and opportunities which were not taken up, the Council failed to amend Miss Y’s EHC Plan to name a setting, which would have given the family their right of appeal.
38. In November 2021, Mr X informed the Council that Miss Y did not want to attend college due to concerns about its impact on her health. Despite this, the Council sent a consultation to a college in December 2021 to assess if it could meet her needs, without adequately considering Miss Y’s preferences. This is fault.
39. At the same time, Mr X requested a bespoke EOTAS package for Miss Y. The Council took two months to consider this request. When the request was considered, the Council failed to recognise that some of the therapeutic activities requested were already included in Miss Y’s EHC Plan. The minutes from the Commissioning Panel meeting show the Council questioned how the therapeutic activities requested would meet Miss Y’s needs, even though Miss Y had previously been assessed as requiring them. This is fault. When Mr X asked to exercise his right of appeal against the decision, the Council did not follow through with the request. This is fault.
40. The Council has accepted that it should have contacted Mr X when the advocate reached out on his behalf in November 2022. Alternatively, the Council could have responded to the advocate and told them they needed to provide consent from the family to continue. This failure represents another missed opportunity resolve the issues. It is disappointing that the Council did not consider the concerns raised by the advocate at the time and instead did nothing.
41. The Council failed to complete a review of Miss Y’s EHC Plan within 12 months of the last review, or within three months of the date of transfer. This is fault.
42. The Council failed to complete an annual review of Miss Y’s EHC Plan. This is fault.
43. The Council did not provide Mr X with a response to his stage 2 complaint, which has been outstanding for ten months. This is fault. The Council explained the reason for the delay was initially high workloads, but it later needed the date the family moved out of the area to calculate a financial remedy. However, the Council did not need this information to respond to the complaint itself. It could have issued a timely response and worked out the financial remedy afterwards.

Conclusion

44. The Council’s repeated failures have caused Miss Y significant injustice. She was left without any of the educational provision or therapeutic activities detailed in her EHC Plan for the two years she lived in the Council’s area. The Council’s failure to conduct annual reviews left Miss Y without access to the right support and opportunities to prepare her for adulthood, impacting her future outcomes. The failures denied the family their right of appeal and caused avoidable distress and uncertainty.
45. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2400 per term to acknowledge the impact of that loss. The figure we recommend takes account of the severity of the child’s special educational needs, whether any provision was made, whether this was a key year of education, and any loss or delayed right of appeal to tribunal.
46. In Miss Y’s case we based the remedy on £2400 a term. This due to Miss Y’s needs, the fact the events occurred during a transition period when she should have been preparing for adulthood, a lack of any educational provision, and the loss of her right of appeal.

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Agreed action

47. To remedy the injustice caused by the above faults, within four weeks of the date of my final decision, the Council has agreed to:
1. apologise to Mr X in line with our guidance on Making an effective apology;
2. pay Mr X £14,400 as a remedy for Miss Y’s benefit, in recognition of the loss of educational support for two years (six school terms). I assessed this by applying the guidelines in our published Guidance on Remedies; and
3. pay Mr X £500 in recognition of the distress, uncertainty, and time and trouble bringing the complaint to the Council.
48. Within three months of my final decision, the Council should:
1. complete a review of its transfer processes to ensure they are in line with the Special Educational Needs and Disability (SEND) code of practice in relation to children with Education, Health and Care Plans. The Council should produce a timebound action plan to implement any improvements it identifies as necessary as a result of that review; and
2. remind relevant staff members dealing with transfers of children with Education, Health and Care (EHC) Plans that it should accept the EHC Plan as it is, provide a placement and/or the provision in the Plan and then complete the annual review process set out in the SEND code of practice.
49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. I have completed my investigation and find fault by the Council causing significant injustice to Miss Y. The Council has agreed to the above action as a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman