Summary: There was fault in the way the Council handled a transfer of an EHC plan and in its failure to secure alternative education when a child was unable to attend school due to ill-health. The Council will apologise, make symbolic payments, and carry out service improvements. The complaint is upheld.

The complaint

1. Ms X complains the Council:

• failed to meet her child’s special educational needs;
• failed to provide funding to the primary school when they moved from another area in late 2022 which meant special educational provision was not in place in the Spring and Summer terms of 2023;
• named an unsuitable school for September 2023 which could not meet need;
• delayed in amending the Education, Health and Care (EHC) Plan;
• delayed providing a right of appeal;
• delayed completing an emergency review called by the parent in Autumn 2023;
• failed to provide alternative (s.19) education from Autumn 2023;
• wrongly advised the named school was responsible for providing interim provision when her child was not on roll and there was a non-delegable duty on the Council to provide this;
• failed to communicate with parents when contact and complaints were made.

2. In her complaint, Ms X asked the Council to:

• Implement the EHC Plan in full, with a financial remedy for the period her child was without suitable education;
• Provide better communication and response times;
• Provide suitable schooling.

Back to top

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 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)
4. 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. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
9. 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)

Back to top

What I have and have not investigated

10. I have investigated Ms X’s complaints against Leeds City Council.
11. I have not investigated the Council for the previous area Ms X lived in. I have not seen evidence Ms X has used that council’s complaint process. (Local Government Act 1974, section 26(5))
12. I have not investigated the actions of the schools; these are not within the jurisdiction of the Ombudsman.
13. I cannot consider the complaint about whether the Council named a suitable school in the EHC Plan. The Ombudsman is not an appeal body and we cannot question decisions made by Councils without fault. It is not our role to decide what is a suitable placement, this is the role of the SEND Tribunal.

Back to top

How I considered this complaint

14. I have considered information provided by Ms X and the Council including:
• Correspondence and complaint documents;
• EHC Plans and associated documents;
• The Council’s response to my enquiries.
15. 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’)

• Statutory Guidance: Alternative Provision; Arranging education for children who cannot attend school because of health needs.

16. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
17. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

18. 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. 

19. 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 12 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)  
20. Council have a duty to make sure a child or young person receive the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)  

21. 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 review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place.

22. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 

23. If a council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.

24. Where a council proposes to amend an EHC Plan, the law says it should complete this process and issue an amended final Plan within twelve weeks of the review meeting.

25. There is a right of appeal to the SEND Tribunal against:

• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• 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;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

26. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
27. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
28. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
29. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
30. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

Key events

31. The following is a summary of key events. It does not include everything that happened.

Transfer of EHC Plan and secondary transfer

32. Ms X’s child, who has special educational needs and an Education, Health and Care (EHC) Plan moved into the Council area in early 2023 but carried on attending their primary school in their old area. The ‘old’ council had recently amended the EHC Plan to name a secondary placement (School X) from September 2023, also in the ‘old’ Council’s area. School X had replied to a consultation confirming it could meet need.
33. Ms X had a right of appeal against the final Plan issued by the ‘old’ Council which she did not use. Ms X told the Ombudsman this was because she expected the Plan to be reviewed by the ‘new’ Council and to gain a new appeal right.
34. Ms X told the new authority she wanted it to consult a special secondary school in its area for her child to attend from September 2023. The Council did consult this school, which took three months to reply, advising it could not offer a place.
35. Ms X and the Council corresponded about schools as Ms X was not in agreement with School X as the next placement. Ms X visited School X and says it expressed concerns her child might struggle with a large school. However, correspondence shows School X subsequently confirmed it still considered it could meet needs. The Council therefore decided School X (in the ‘old’ council’s area) would remain as the next placement as already set out in the existing EHC Plan issued by the ‘old’ council. Ms X asked the Council to confirm this in writing so she could apply to the SEND Tribunal. I cannot see the Council replied to this request.
36. In September 2023, Ms X’s child attended School X for only one day. School X appears to have removed Ms X’s child from the roll. The Council told School X that Ms X’s child must remain on roll, and it remained responsible for welfare checks and educational provision.
37. The Council says School X did not inform either council Ms X’s child was not attending, but it was aware of this as Ms X told it so.
38. Ms X requested an emergency review of the EHC Plan so her child could move to a school in the new council area. The review was held one month into the new term. The paperwork was not uploaded to the Council’s system until five weeks later. The Council decided to amend the Plan two weeks after this. Following consultations with other schools a final EHC Plan was issued three months later. Ms X then gained a new appeal right. Initially Ms X’s preference of school (School Y) was full but a place then became available in early 2024.
39. The amended final Plan naming School Y was issued in early 2024.

Special Educational Provision funding at primary school

40. The ‘new’ Council became responsible for the special educational provision in Section F of the EHC Plan when the Plan was transferred. It did not provide funding to the primary school for this provision until late Spring. The ‘old’ Council had not put provision in place when it finalised the EHC Plan in early 2023. The Council backdated the payment by eight weeks to when Ms X moved into its area. It told me its understanding was that all the special educational provision was in place except for 1:1 support which was not in place in the Spring or Summer terms of 2023. The EHC Plan stated Ms X’s child should receive 15 hours of 1:1 support per week.
41. The Council said it was not responsible for the ‘old’ Council failing to fund provision when it amended the EHC Plan in early 2023. It also said the annual review paperwork indicated Ms X’s child was working at age related expectations. This implies it considers no significant injustice arose from the loss of 1:1 provision.

Alternative provision / s.19 education

42. The Council did not provide alternative provision when Ms X’s child stopped attending school on the second day of the Autumn 2023 term.
43. Ms X’s position is her child had medical needs in Autumn 2023 which meant they were unable to attend school. Ms X says a referral for medical tuition was agreed. It appears the Council expected School X to action this, but School X then said as it had not put Ms X’s child on roll and as the alternative provision was not in its area, it would not be doing so, and it could not monitor this.
44. Ms X complained about lack of tuition in early 2024. The Council’s view at that time was it did not have enough information to say mainstream school was not suitable.

Council’s response to my enquiries

45. The Council, in response to my enquiries, has made several additional points.
46. The Council says the requirement for a child to attend the placement specified in their Plan remains after they move area. The Council accepts it should have ‘made a decision on the practicality of attendance’ at School X. It accepts this was not done but says that it did consult a number of alternative schools in line with Ms X’s wishes.
47. When the Council decided not to change the placement from School X it says it should have re-issued the EHC Plan and given Ms X a new right of appeal. Although it did not have a duty to consult new settings, it had done so, and therefore had raised Ms X’s expectations. It did not provide an avenue for her to appeal the setting when this was confirmed to remain as School X in Summer 2023.
48. The Council does not accept there was delay in arranging a review in Autumn 2023. It asked Ms X to give School X a chance to put provision in place so suitability could be considered at the review. As Ms X did not send her child back to School X a review was then arranged within a month.
49. The Council accepts medical tuition was discussed but says Ms X indicated her child could not manage mainstream school and she was ‘not keen’ for her child to attend an interim provision. The Council says its position in September 2023 was that without evidence Ms X’s child was medically unfit they should attend. If they could not attend for health reasons the Council would expect the school to manage an educational programme by offering online learning, tutors or work packs. The Council told me it considered this was appropriate advice in early September.
50. The Council denies poor communication but does accept its responses were sometimes over its five day target, that there was a delay in sorting funding, and there was an error in communication when Ms X’s child attended a transition day for a school not named in their Plan, for which the Council says it has already accepted fault and made a symbolic payment to apologise. The Council also accepts its complaint responses were delayed.
51. The Council has indicated it wishes to apologise to Ms X and offer her a remedy as follows:
• An apology for the additional fault it has now identified in addition to that identified at stage one and two of the complaint process.
• Acknowledgement of a delayed right of appeal after Ms X moved into its area as it did not reissue the Plan in July and it would have been helpful to do so. It did not provide Ms X with an appeal right for another seven months when it updated the Plan (late) after the emergency review. The Council has offered a symbolic payment of £700 for this delay.
• A symbolic payment of £200 for the times it did not communicate in a timely way, in addition to the £200 it has already paid for the fault about the transition day.
• Acknowledgement alternative education was not offered from September 2023 until Spring 2024. The Council has offered a symbolic payment of £2700 for missed provision. It says in mitigation Ms X chose for her child not to attend School X and did not take up offers of re-engagement.

Analysis

Fault

52. The Council has accepted there was an eight week delay in providing funding to the primary school by which time it was too late for the school to put 1:1 support in place for the school year. This meant Ms X’s child missed out on 15 hours 1:1 support for five months because of fault by the Council. I cannot investigate the delay by the previous council. (Local Government Act 1974, section 26(5))
53. While Ms X had a right of appeal against the EHC Plan issued by the ‘old’ council in early 2023, I consider it was reasonable she did not use this right as she expected the Plan to be reviewed after moving to the new Council area. While the Council had no obligation to review the Plan until a year after the previous review, I have not seen evidence the Council told Ms X when it would hold the review in line with the Regulations. The Council has also now accepted that it raised Ms X's expectations it would review the Plan when it agreed to consult more schools. The Council says it should therefore have provided Ms X with a new appeal right in Summer 2023 when it did not change its mind about the named placement, and it knew she was not in agreement with it and wished to appeal. I agree.
54. There was some delay in completing the emergency review held in Autumn 2023. A final EHC Plan took more than twelve weeks, although this was in part due to no place initially being available at Ms X’s choice of school. I have not found evidence the review was held late. It was held soon into the Autumn term once it became apparent Ms X’s child was not going to attend School X.
55. As there was a placement named in the Plan and available, the Council did not have a duty to provide s.19 education unless it determined Ms X’s child was too ill to attend. The Council has told me it believes it should have put s.19 education in place from September 2023 to February 2024. I can also see there was discussion about arranging alternative provision at the time which was not actioned. Councils can delegate the arranging of provision to schools but cannot delegate the legal duty. Therefore, if a school fails to put provision in place it must intervene. The Council has now accepted fault for this period and that it had responsibility for s.19 education.
56. The Council has also accepted some additional issues with communication.

Injustice

57. The Council has accepted it raised expectations, failed to provide a right of appeal and caused unnecessary frustration, time and trouble. It has offered an additional symbolic payment of £900 for the impact of delay and communication issues. This is in line with the Ombudsman’s Guidance on Remedies and is an appropriate remedy.
58. The Council has accepted Ms X’s child missed education between September and February. It has offered a symbolic payment of £2700. I consider this is an appropriate remedy given Ms X’s child’s medical needs would have led to interrupted education in any event.
59. The Council has accepted delay in putting the funding in place in the Spring / Summer terms of 2023. It has not offered a remedy for this period because it says Ms X’s child was meeting age expectations. The EHC Plan confirms this is correct in English and Maths but identifies needs in many other areas which is why 15 hours of 1:1 support was included in the Plan. I consider that a remedy for the loss of this support is therefore merited.

Back to top

Agreed action

Within four weeks of my final decision

60. The Council will apologise to Ms X for the additional fault identified since the stage one and two complaints.
61. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
62. The Council will pay Ms X:
• £900 for the impact on Ms X of delay, raised expectations and her time and trouble,
• £2700 to acknowledge the impact to Ms X’s child of missed education between Autumn 2023 and Spring 2024,
• £900 for the loss of 1:1 support at primary school due to delayed funding.

Within two months of my final decision

63. The Council will ensure it provides the correct notifications to parents when a child with an EHC Plan transfers into the area including advising on the timing of reviews.
64. The Council will ensure it ensures s.19 education is secured where appropriate and intervene if a school fails to make suitable arrangements.
65. The Council will ensure it can process funding in a timely way to ensure provision in Section F of an EHC Plan is secured.
66. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

67. I have completed my investigation. There was fault in the way the Council handled a transfer of an EHC plan and its failure to secure alternative education when a child was unable to attend school due to ill-health. I am satisfied the agreed actions set out above are a satisfactory remedy to the complaint.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman