Summary: Mr X complained the Council delayed in providing education for his son, Y when Y moved to live with him in the Council’s area. The Council delayed three months in providing education and specialist educational provision to Y when it became responsible for his Education, Health and Care (EHC) Plan in December 2022. Y missed out on education and special educational provision for three months and Mr X was caused frustration and distress. The Council will apologise and make a payment of £2,600 to Mr X for the injustice caused to him and Y and remind relevant staff of its duties to children transferring to its area with an EHC Plan.

The complaint

1. Mr X complained the Council delayed in providing education for his son, Y when Y moved to live with him in the Council’s area. Mr X said this caused him and Y distress and frustration, meant Y missed six months of education and he lost earnings of £40,000 as he could not work while Y could not go to school. Mr X wanted the Council to acknowledge its errors and apologise, and provide recompense for the impact on him and Y.

Back to top

The Ombudsman’s role and powers

2. 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)
3. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
4. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

6. I read the documents Mr X provided and discussed the complaint with him on the phone.
7. I considered the documents the Council sent in response to my enquiries.
8. Mr 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 legislation and guidance

Education, Health and Care Plan

9. 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.
10. 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 transfer or within 15 working days of becoming aware of the transfer 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)  
11. If it is no longer suitable for a child or young person to attend the school named in their EHC Plan, because they have moved too far away, the new council must arrange for them to attend another appropriate school until it is possible to amend their EHC Plan.
12. As a general guide, the maximum journey time for a child of secondary school age should be 75 minutes each way for a child of secondary school age. Travel arrangements should take in to account the requirements of children with special educational needs. (Travel to school for children of compulsory school age, Statutory Guidance)

Special educational provision

13. The council has a duty to make sure the child or young person receives 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)  

What happened

14. Y is of secondary school age. He has special educational needs (SEN) and has an EHC Plan that sets outs the specialist provision he should receive and the school he should attend. The Plan in force for Y at the time of these events said that he lived at home with his mother and sibling in a different council area (Council 2). The Plan said Y should attend School A (a special school) in Council 2’s area.
15. Y’s EHC Plan said that Y required special educational provision including:
• opportunities to work in small groups with other children;
• small group interventions to develop social skills; and
• regular opportunities to develop connections with classmates.
16. Mr X contacted the Council at the beginning of September and told it Y had moved to live with him and he wanted Y to attend a school in the Council’s area, School B. The Council contacted Council 2 and asked it to send Y’s EHC Plan file. Council 2 replied a week later and said it was trying to understand the legal position of Y’s move and could not send the EHC Plan file.
17. Two weeks after Mr X contacted it the Council issued a draft amended EHC Plan for Y and it said it consulted School B at the same time. It told Mr X it had done so and was waiting for a response from School B.
18. The Council contacted Council 2 again at the end of September to ask for Y’s file. Council 2 told it that it was waiting for the outcome of family court hearing before releasing the file. The Council updated Mr X and explained it was waiting for Council 2 to send the file and for School B to respond to the consultation.
19. Mr X complained to the Council. He said it had offered no support to find a school place for Y since the beginning of September and not kept in contact with him.
20. The Council contacted Mr X by phone at the beginning of October and explained Council 2 would not release the EHC Plan and so Council 2 remained responsible for Y’s education. It said it was continuing to discuss the matter with Council 2.
21. A week later the Council updated Mr X again and told him that it was unable to take any action until Council 2 handed over responsibility for Y’s EHC Plan. It told Mr X that Council 2 said Y should continue to attend School A and the Council could not provide tuition as it was not responsible for Y’s education. Mr X told the Council he did not want Y to attend School A, and it was too far away.
22. Mr X complained to his MP who contacted the Council on Mr X’s behalf. The Council responded to the MP and explained that it had begun the process to find an appropriate school place for Y but it could not take action until Council 2 had provided the file. It said that Council 2 remained responsible for Y’s education and Y should continue to attend School A as the school named on his EHC Plan. It said if the file was transferred it would make the necessary arrangements to provide suitable education for Y and maintain his Plan.
23. Mr X told the Council at the end of November that a judged had ordered Y should stay with Mr X. The Council contacted Council 2 and asked it if it could now send it Y’s EHC Plan file.
24. Council 2 handed responsibility for Y’s EHC Plan and education over to the Council at the beginning of December 2022.
25. At the end of December the Council told Mr X that Y’s EHC Plan would be considered by its panel and it would arrange tuition in the short term.
26. At the end of January 2023 Mr X asked the Council for an update.
27. A week later the Council sent consultations to three schools (including to School B again) and requested tuition for Y.
28. The Council began to provide tuition for Y from the 10 February 2023 for ten hours a week.
29. At the end of February 2023 School B offered Y a place. The following day the Council issued an amended EHC Plan for Y naming School B as the school Y should attend. The special educational provision Y should receive remained the same. Y began attending School B two weeks later.
30. In the middle of February 2024 the Council provided a response to Mr X’s complaint that he had made in September 2022. It said:
• it did consult with School B as Mr X’s parental preference as soon as possible when Y moved into the area but it could not take action until Council 2 provided Y’s EHC Plan. It said Y’s education had remained Council 2’s responsibility until December 2022;
• it accepted it had delayed in finding a tutor in December 2022 which meant Y was out of education for half a term between the beginning of December and the beginning of February 2023 and apologised;
• it apologised for the delay in its response to his complaint and in its communication with him; and
• it explained it had made service improvements to ensure it made quicker decision about commissioning tutors and was considering how it could improve its complaint handling.
31. Mr X remained dissatisfied with the Council’s response and complained to us.
32. In response to my enquiries the Council stated the delay in its complaint response was unacceptable and was due to staffing issues. It stated it had resolved this by asking staff from its SEN team to respond to complaints in the first instance.

My findings

33. The Council was aware that Y had moved into its area in September 2022, however it did not become responsible for Y’s education or EHC Plan until it was transferred by Council 2 in December 2022. The Council did not need to take any action in September. However, as the Council did take action, it should have acted in line with the guidance. The Council should have ensured the provision in Y’s Plan was available to him within 15 days. It could have done so by arranging for Y to continue to attend School A, as it was within 75 minutes travel of his new home address, or providing an appropriate school place or alternative. It should then have reviewed Y’s EHC Plan. Instead, the Council issued a draft amended EHC Plan and consulted School B to name it in the Plan. That was not in line with the guidance and was fault. However, I it did not cause Y an injustice. This is because the Council was not responsible for Y’s EHC Plan until December 2022 and Mr X indicated he did not want Y to attend School A.
34. The Council kept in regular contact with Mr X and Council 2 between September and December 2022 and took what action it could during that time to resolve the issue of the delayed transfer. There was no fault in the Council’s actions during that period.
35. The Council was aware Y was living in its area and it was likely to be taking responsibility for his education and EHC Plan soon. Therefore when it received the file from Council 2 in December it should have taken immediate action to provide the provision in Y’s EHC Plan, and then reviewed his EHC Plan within three months. The Council concentrated on amending Y’s EHC Plan instead of securing the provision for him in line with the regulations and guidance. The Council did not take any action to provide education or specialist provision for Y until the beginning of February 2023 when it requested tuition. That was fault.
36. As a result of the fault identified above Y did not receive an education or the special educational provision in his EHC Plan between December 2022 and February 2023 when the tuition began. Y remained without some of the special educational provision in his Plan as set out in paragraph 15 for a further two weeks until he started at School B in March 2023.
37. This fault also caused Mr X avoidable frustration as it affected his ability to work while Y was out of education. Mr X said because of the Council’s action he had lost £40,000 and the Council should compensate him. I cannot say, even on a balance of probabilities, the Council’s actions caused Mr X’s loss of earnings. In addition our remedy recommendations are not intended to be punitive fines or provide compensation in the way a court might. I have made an appropriate symbolic recommendation to remedy the injustice caused to Mr X below.
38. The Council failed to communicate with Mr X between the end of December 2022 and middle of February 2023. Mr X asked for updates and did not receive a response. Mr X also raised a complaint in September 2022 and the Council did not respond until February 2024 which was a delay of 16 months. The delay and lack of communication was fault and caused Mr X avoidable frustration and distress.

Back to top

Agreed action

39. Within one month of this decision the Council will:
• write to Mr X and apologise for the injustice caused to him and Y by the Council’s faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended;
• pay Mr X £2,100 to recognise the impact of the education Y did not receive between the beginning of December 2022 and February 2023, and the specialist provision he did not receive between December 2022 and March 2023. This is in line with our guidance on remedies. Mr X should use this for Y’s educational benefit as he sees fit; and
• pay Mr X a symbolic amount of £500 to recognise the avoidable frustration and distress he was caused by the Council’s faults.
40. Within one month of this decision the Council will also remind relevant SEN staff of the actions it should take in line with Section 15 Special Educational Needs and Disability Regulations 2014, when a child with an EHC Plan transfers into its area. The Council will ensure staff are aware it should secure the special educational provision for the child before it reviews or issues an amended EHC Plan.
41. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

42. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice and avoid the same fault occurring in the future.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman