Summary: Mr X complained about the Council’s handling of his son, F’s Education, Health and Care (EHC) Plan when it was transferred over from another council area in September 2023. The Council failed to deal with F’s EHC Plan transfer in line with relevant law and guidance. This caused Mr X distress and uncertainty and impacted on F’s education between September and November 2023. Events from November 2023 onwards are outside of our jurisdiction as Mr X has used his right of appeal to the SEND tribunal.

The complaint

1. Mr X complained about the Council’s handling of his son, F’s Education, Health and Care (EHC) Plan when it was transferred over from another council in September 2023.
2. Mr X said the previous council had agreed a personal budget so he could electively home educate F, but the Council refused to do the same.
3. Mr X said F did not receive any education since moving into the Council area which has impacted on his education and wellbeing and has caused distress and uncertainty.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
5. 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).
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended).
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 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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How I considered this complaint

9. I spoke to Mr X about his complaint and considered information he provided.
10. I considered the Council’s response to my enquiry letter.
11. Mr X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

EHC Plans and annual reviews

12. 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.
13. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement.
• Section J: Details of any personal budget.

Transfer of EHC Plans between councils

14. 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 review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014).

Personal Budgets

15. 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.
16. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan.
17. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.

SEND Tribunal and relevant caselaw

18. 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.
19. There is a right of appeal to the SEND tribunal against the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified.
20. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).
21. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
22. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
23. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin)

Elective Home Education (EHE)

24. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
25. In cases where the EHC Plan gives the name of a school or type of school where the child will be educated and the parents decide to educate at home, the council is not under a duty to make the special educational provision set out in the Plan, provided it is satisfied the arrangements made by the parents are suitable. Councils must review the plan annually to assure itself the provision in the Plan continues to be appropriate and that the child’s SEN continues to be met.

What happened

26. Mr X has a son, F who is of secondary school age. F has special education needs (SEN) and an EHC Plan. In 2023 F attended a mainstream secondary school in another council area, Council B. Records show F struggled with secondary school due to high levels of anxiety. In March 2023 Mr X decided attending school was affecting F’s mental wellbeing and therefore chose to home educate him instead. In July 2023 Council B issued an amended EHC Plan which named parental preference as ‘Elective Home Education’ in section I. Section J stated Mr X had requested a personal budget which the Council B was considering.
27. In August 2023 Council B informed the Council that F was moving into its area and therefore his EHC Plan would also transfer. The Council said it had been communicating with Mr X about the move since June 2023. Prior to moving Council B had approved Mr X’s request for a personal budget however it did not update F’s EHC Plan to reflect this.
28. F and his family moved and his EHC Plan formally transferred over to the Council on 18 September 2023. Council officers spoke with Mr X during September who confirmed that he wished to continue EHE F. Mr X told the Council that Council B had previously approved a personal budget. The officer sent F’s EHC Plan and the personal budget request to the Council’s SEND panel to consider.
29. Records show the Council discussed Mr X’s request for a personal budget. Email records show an officer said it was not usual for parents EHE to get financial help and they were unsure what the procedure was. Another officer stated similar requests were declined in the past as the funding for EHC Plans go to schools. The officer said it was up to the school to agree a personal budget.
30. In early October 2023 the Council wrote to Mr X. The letter said the SEND panel had agreed to maintain F’s EHC Plan however said an early annual review should take place to consider whether F required a needs re-assessment. There is no evidence the Council scheduled this review.
31. Towards the end of October 2023, the Council wrote to Mr X again about the transfer of the EHC Plan, confirming it had agreed to maintain it. The Council provided Mr X with a draft EHC Plan. Section I was blank and the personal budget section was filled in as ‘not-applicable’ and ‘discussed but not taken up’.
32. Mr X complained to the Council, unhappy the Council had issued a draft Plan rather than accepting the ‘final copy’ from Council B. He questioned some of the content of the draft Plan, why it did not include information about a recent autism diagnosis and why section I did not name ‘EHE’. Mr X was also unhappy with the Council’s handling of the personal budget and suggested the agreement from Council B should be honoured and transferred. He said F was currently not receiving any education.
33. In early November the Council’s SEND panel discussed F’s case. It decided Mr X had made the decision to EHE F’s education and therefore the Council would not provide funding. It said the Council would support F’s return to school which it agreed would be a specialist placement.
34. The Council issued F’s final amended EHC Plan in mid-November 2023. Section I said the Council recommended F attend specialist provision, but parental preference was EHE. The letter accompanying the final Plan included Mr X’s right of appeal to the SEND tribunal.
35. The Council responded to Mr X’s complaint at the end of November. It said:
• Council B issued its final Plan for F in July. It said regulations state upon transfer that a new draft should be issued, and then a final plan within 15 days after that.
• It did not receive a diagnosis letter upon transfer from Council B.
• As F was EHE a personal budget was not available.
36. Mr X escalated his complaint to stage two, unhappy the Council did not transfer the agreed final EHC Plan and personal budget across, instead issuing a new draft Plan.
37. The Council issued its final complaint response to Mr X in early January 2024. It said:
• F’s autism diagnosis was included in the final EHC Plan issued in November 2023.
• Panel agreed it was not appropriate to provide a personal budget for EHE, and so financial responsibility remained with Mr X.
• The Council had agreed Mr X could continue EHE F which was in line with his wishes.
• As Mr X was EHE F there was no duty for it to provide a package of financial support.
38. Mr X remained unhappy and complained to us.
39. In January 2024 Mr X appealed to the SEND tribunal about both the content of and named placement in F’s EHC Plan.

My findings

Transfer of the EHC Plan

40. The Council accepted F’s EHC Plan from Council B in September 2023. The final Plan transferred from Council B stated F was EHE. Relevant law and guidance set out a council’s duty when accepting an EHC Plan from another council area. The Council therefore had the same legal duty towards the EHC Plan as if it had issued the EHC Plan itself. The only way to change the transferred Plan is to issue a new Plan following either an annual review or an EHC needs reassessment. Despite telling Mr X it intended to hold an annual review, it did not hold one or schedule one. Instead, it issued a new draft Plan and then a new amended Plan. All of this was procedurally incorrect and fault.
41. Although the Council did not follow the correct procedure when accepting F’s EHC Plan from Council B, it ultimately issued a new final Plan which came with a right of appeal to the SEND tribunal which Mr X has now used. As explained in paragraphs 18-23 this means the period after it issued the amended EHC Plan is outside of our jurisdiction.

Personal budget

42. Although Council B had agreed a personal budget, the transferred Plan was not updated to reflect this and therefore, did not include a personal budget. So, there was no requirement or duty for the Council to put the personal budget agreed by Council B in place.
43. The Council’s panel did eventually consider Mr X’s request for funding in November 2023, and decided as F was being EHE it would not provide funding. However, the Council is only under a duty not to make the specialist provision in a Plan if it has made enquiries, at the time, to satisfy itself that the arrangements made by Mr X were suitable. I have seen no evidence this was the case. Therefore, the panel’s reasons for declining funding are not in line with the Code as is fault.

Injustice

44. Records show Council officers were unsure about how to deal with the transfer of F’s EHC Plan. It quoted incorrect regulations about issuing draft Plans following transfer and said it was up to schools to agree personal budgets. Both of which are incorrect. There is no evidence the Council checked whether the arrangements made by Mr X was suitable and an officer also recorded they were unsure about how to deal with a personal budget request for EHE.
45. All of the above meant the Council did not accept the transfer of F’s EHC Plan correctly and meant it provided Mr X with poor and inconsistent information about his duty as an EHE parent. It caused uncertainty about how Mr X was meant to deal with F’s education upon transfer. It leaves uncertainty about whether more support could have been given to F had the Council both dealt with the transfer properly and efficiently and made early checks around any home education arrangements Mr X had made. The poor handling of this case and the uncertainty caused to Mr X contributed to F not receiving education between September and November 2023.

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Agreed action

46. Within one month of the final decision the Council agreed to take the following action:
1. pay Mr X £500 to acknowledge the impact the faults had on F’s education between September and November 2023.
2. pay Mr X £200 to recognise the distress and uncertainty caused to him by the Council’s handling of F’s transferred EHC Plan from Council B.
3. carry out staff training with SEND staff around the Council’s duties when accepting transferred Education, Health and Care (EHC) Plans from another council area and about its consideration of funding for parents who Electively Home Educate children with EHC Plans.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman