Summary: Mr X complained about the Council’s delay in dealing with the transfer of his children’s Education, Health and Care Plans and failure to respond to his stage 2 complaint. We found there was fault by the Council which caused Mr X distress and led to the loss of educational provision for his children. To put matters right, the Council agreed to apologise to Mr X and make a symbolic payment of £500.

The complaint

1. Mr X complained about the Council’s delay in securing the content of his children’s Education, Health and Care Plans (EHC Plans) when the family moved into West Sussex.
2. Mr X said the delay and its resulting uncertainty caused him and his children significant distress and hindered his children’s education.
3. Mr X wanted the Council to provide school places for his children and implement their EHC Plans. Mr X also wanted the Council to respond to his complaint.

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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. 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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How I considered this complaint

7. I have:

• considered Mr X’s written complaint and supporting papers;
• talked to Mr X about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared Council information about the complaint with Mr X; and
• shared a draft of this statement with Mr X and the Council and considered any comments received before making a final decision.

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What I found

Background

8. A child or young person with special educational needs may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them. 

9. Where a child or young person moves to another council’s area, 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. (Special Educational Needs and Disability Regulations 2014, Regulation 15)  

What happened

10. Mr X’s family moved to West Sussex. Mr X’s children (in this statement called ‘B’ and ‘D’ had EHC Plans. The council that issued the EHC Plans (‘the old council’) had contacted the Council about transferring the Plans two weeks before the family’s move. Mr X knew what the old council had done and waited for the Council to get in touch with him.
11. Not hearing from the Council, Mr X telephoned it the day following the move. The Council confirmed it had received information about B and D’s EHC Plans and an officer would speak urgently to Mr X the next day. Despite further calls and emails to the Council, getting no response over the next four days, Mr X complained to the Council. He said nothing had happened since the old council had contacted it about transferring B and D’s EHC Plans. Mr X said the Council needed to deal with the case immediately and provide B and D with school places.
12. Two days later, the Council contacted Mr X asking for proof that B and D were living with him within West Sussex. The Council said, once it had such proof, it would appoint an officer to deal with the case. Mr X sent the Council the necessary proof later the same day.
13. A week later, the Council replied to Mr X’s complaint. It apologised for not contacting him when the old council told it about the transfer of B and D’s EHC Plans and confirmed an officer was now dealing with the case. The Council told Mr X how he could continue with his complaint if dissatisfied with its response.
14. Mr X replied the same day saying the response was inadequate and asking the Council to take it to the second stage of its complaints procedure. Mr X said, to resolve his complaint, the Council needed to prioritise finding B and D school places and he suggested two schools he believed would meet their needs.
15. The Council told Mr X it would review the complaint and respond within the next four weeks. Four weeks later, the Council apologised to Mr X saying it had not been possible to consider his complaint within its time target. The Council said Mr X’s complaint was a priority and would be considered as soon as possible. The Council also told Mr X he could complain to the Ombudsman, which he later did.
16. Meanwhile, the Council had been trying to secure school places for B and D. And, about three months after receiving the old council’s transfer notices, it issued amended EHC Plans naming Mr X’s preferred school for B and D. B and D started at their new school about a week later.

What Mr X told us

17. Mr X said he expected the Council would need some time to find B and D school places. But despite the old council telling it of his family’s move, it failed to act until he formally complained. The Council’s failure to engage with the transfer of B and D’s EHC Plans had been most frustrating. And it later failed to deal with his stage two complaint or offer B and D school places, which needed to be in the same school. Mr X said B and D could not understand why they could not go to school. He and Mrs X had received no response when they had asked the Council for help in trying to home educate B and D until they had school places. What happened had caused the family significant stress and upset and had negatively impacted B and D’s education. However, Mr X was satisfied with the support B and D were now receiving at their new school.

The Council’s comments

18. The Council said when Mr X and his family moved to West Sussex, it had no available specialist school places. Once it received proof Mr X and his family were living in West Sussex, it formally consulted schools about placements for B and D. It had to give the schools 15 working days to respond and it received the final response on the 12th working day. Mr X then confirmed his preference for one of the four schools. That school had raised issues in its consultation response and had no available places. The Council said it then focused on meeting Mr X’s preference that both B and D attend that school. This led it to discuss B and D’s needs with Mr X and meet with school representatives about the support required to meet those needs. The school later agreed to admit B and D although that meant it exceeded its published number of specialist places. The Council said it then wrote to Mr X about amending B and D’s EHC Plans, giving him 15 days to comment. The amendments included naming Mr X’s preferred school for both B and D. It then issued EHC Plans for B and D and they started at their new school.
19. The Council recognised B and D were out of school during its consultations and discussions. It had not found alternative educational provision suitable because of B and D’s age. And it had focused on achieving Mr X’s aim that it secure places for both B and D at his preferred school.
20. The Council said it had a procedure for handling the transfer of EHC Plans and provided its copy letter for parents about moves in and out of West Sussex. However, it said the service had gone through significant changes, which had affected staff and how they worked in teams. It would therefore provide a training programme for staff covering procedures for transferring EHC Plans.
21. On complaints handling, the Council said a senior officer worked almost only on its backlog of complaints about special educational needs (SEN). It had recently funded a further senior post and changed a fixed term contract into a permanent complaint handling post. It was managing the backlog, which was now reducing. However, recent figures showed it sent only 42% of stage 2 complaint responses within its 20 working days target. Because of national pressures on SEN services, which it shared, it did not expect the number of SEN complaints it received to soon decrease. It was a Pilot council for the Ombudsman’s new Complaints Handling Code and was working on changes to its complaints handling procedure (see Complaint Handling Code - Local Government and Social Care Ombudsman). It would likely focus first on dealing with SEN complaints when introducing its new complaints procedure.

Consideration

The transfer of B and D’s EHC Plans

22. The Council said it had a procedure for dealing with the transfer of EHC Plans when people moved in or out of West Sussex. However, I saw no evidence the Council applied any such procedure to Mr X’s case. Specifically, it did not send Mr X its standard letter about his move on receiving the old council’s notices about transferring B and D’s EHC Plans (see paragraphs 10 and 20).
23. The evidence showed Mr X’s concern, not having heard from the Council before his move, about getting school places for B and D. Mr X contacted the Council immediately after his move and continued to press it to find school places for B and D before moving swiftly to make a formal complaint. I found the balance of the evidence suggested Mr X’s sustained push for action most likely led the Council to start processing B and D’s case. However, when the Council finally asked Mr X for proof he lived in West Sussex, three weeks had passed since receipt of the old council’s EHC Plan transfer notices (see paragraphs 10 to 12). I found those three weeks represented avoidable delay and so there was fault here.
24. Once the Council started the process, it took about 10 weeks before B and D started at their new school. I recognised this was a long time for B and D to be out of school and receiving no alternative educational provision. However, the Council had no available specialist places that could meet B and D’s EHC Plan needs. The Council needed time to consult with schools and then, to secure places for both B and D at the same school, it had to negotiate with Mr X’s preferred school. I saw no evidence of substantive avoidable delay by the Council during the 10 weeks.
25. School holidays took place during the 10 weeks the Council was seeking school places for B and D. If the Council had acted immediately on receiving the transfer notices, the 10 weeks would have fallen around the start of a school holiday. I therefore found that, without the three weeks avoidable delay (see paragraph 23), B and D would likely have started at their new school about one week earlier than they did. I considered B and D’s specific circumstances. I also took into account that B’s EHC Plan showed the need for significant interventions. And it was a significant year in D’s school career. I therefore found the early avoidable delay did cause significant injustice to B and D, although for a short time.

Complaints handling

26. In coming to the Ombudsman, Mr X remained upset by the Council’s failure to respond to his stage 2 complaint. We were aware the Council had a backlog of stage 2 complaints and it had previously agreed to make service improvements in its complaints handling. However, it takes time to overcome a backlog and the Council’s response showed it was continuing to take steps to improve its complaints service (see paragraph 21). But, here, the Council gave Mr X a four-week response date when it was only meeting that target in 42% of cases (see paragraph 21). It then told Mr X his stage 2 complaint had priority but had not replied a further three months later (see paragraph 15). I therefore found fault in the Council’s complaints handling.
27. The contents of the Council’s communications with Mr X, about when it would reply, would have wrongly raised Mr X’s expectations, and so led to avoidable frustration. This was in addition to the avoidable distress caused by the Council’s early delay in processing the transfer of B and D’s EHC Plans and securing them school places. I therefore found injustice here.

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Agreed action

28. I found fault causing injustice. To address that injustice, the Council agreed:

• (Within 10 working days of this statement) to send Mr X a written apology for the distress and frustration caused by its avoidable delay in processing the transfer of B and D’s EHC Plans and failure to provide a stage 2 complaint response.
• (Within 20 working days of this statement) to make a symbolic payment of £500 to Mr X comprising:

• £100 in recognition of the distress and frustration caused by the Council’s avoidable delay and failure to respond to his stage 2 complaint,
• £200 for the benefit of B in recognition of the lost opportunity to access educational provision in their EHC Plan,
• £200 for the benefit of D in recognition of the lost opportunity to access educational provision in their EHC Plan.

• (Within two calendar months of this statement) to provide training to all relevant staff about transferring EHC Plans and the Council’s procedures for such transfers.

29. We publish guidance on remedies which sets out our expectations for how councils should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology at paragraph 28.
30. The Council will provide us with evidence of its compliance with paragraph 28 on taking each action set out in that paragraph.
31. At this point, I made no further recommendations for service improvements to the Council’s complaints handling given its continuing work to address its backlog (see paragraph 21).

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Final decision

32. I completed my investigation, finding fault causing injustice, on the Council agreeing the actions at paragraphs 28 to 30.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman