Summary: Mrs X complains about the Council’s handling of her sons’ Education, Health and Care Plans after they moved into the Council’s area in summer 2023. She says that as a result her sons missed education and essential Special Education Support that they were entitled to. We found the Council was at fault for the delay in finalising the transfer process and for not keeping Mrs X informed about the progress of her complaint. The Council agreed to our recommendations on how to address the injustice its actions caused the family.

The complaint

1. Mrs X complains that since July 2023, when the family moved into the Council’s area, the Council has failed to:
• provide her children, Y and Mr Z, with education;
• review and finalise their EHC Plans;
• communicate effectively with her about the progress of EHC Plan reviews and finding school places for Y and Mr Z; and
• respond to her stage two complaint in accordance with its complaint policy.
2. She says her children have missed out on education and social opportunities, she has had to provide additional care as they are not in school, and the matter has caused her frustration and distress.
3. She wants the Council to allocate her children permanent school placements and improve its communication with parents.

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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 an injustice, 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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted in advance of publication on our website.

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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and Mrs X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Mrs X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

EHC Plans

9. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
10. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
11. Where a child or young person moves to another council, the ‘old’ council must transfer the EHCP to the ‘new’ council. The new council must tell the child’s parent or the young person, within six weeks of the date of transfer, when it proposes to make an EHC needs assessment. (Special Educational Needs and Disability Regulations 2014) 
12. When a child or young person moves to another council, the new council should inform the child’s parents or the young person within six weeks, the plan has been transferred and if it proposes to make a new EHC needs assessment or review the EHCP.
13. The new authority must review the EHCP either:
• within 12 months from the last plan, or the previous review, or
• 3 months after the date of the transfer.
14. The council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
15. 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.
16. 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)
17. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
18. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
19. 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)
20. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022

What happened

21. In July 2023 Mrs X moved into the Council’s area with her two children, Y and Mr Z. Both had an EHC Plan. Mrs X told the Council about this two weeks before she moved. In September 2023 Mr Z was to begin Year 12, so his final year of secondary education.
22. In early October 2023 Mrs X complained to the Council. She told the Council that Y and Mr Z were not receiving education, and that she still had not received a final EHC Plan following their move into the Council’s area.
23. Soon after her complaint, the Council updated Mrs X with all the consultations it had done for Mr Z, and the responses it received.
24. The Council replied to her complaint in late October 2023 and said:
• it apologised to Mrs X for how long it was taking the Council to identify Y’s and Mr Z’s school places;
• since September it had consulted with several schools for Y and Mr Z, but none of them said they could meet their needs;
• the Council had offered Y and Mr Z a home tutor, but Mrs X said this was not suitable for them, as they did not engage with home tutors in the past;
• Mrs X had told the officer that she was happy to wait for her preferred school placement for Y till January 2024; and
• the Council would consult another school for Mr Z.
25. Within a few days Mrs X asked the Council to consider her complaint further as she was not happy with its first response.
26. At the end of November 2023 Mrs X chased the Council for updates about the progress in securing school places for Y and Mr Z.
27. In early December a local school contacted Mrs X and told her that Y could attend if there was a 1:1 tutor provided.
28. In mid-December the Council acknowledged Mrs X’s request to escalate her complaint. The complaints team explained the delay in acknowledgment happened because the SEN Team did not pass on her request quickly. The complaints team told Mrs X the Council would reply to her corporate complaint by mid-January 2024.
29. In the same month Mrs X chased the Council for a decision about Y, as he had a place offer from a local SEN school.
30. The Council gave its final response in mid-January 2024. It said that:
• it accepted the Council’s communication with Mrs X was poor;
• it has decided a member of its autism team should visit Y and Mr Z to ensure the EHC Plans reflect their needs adequately. This was because there was no professional involvement since the family moved into the Council’s area;
• the Council understood this was delaying agreeing provision for Y, who had a school place offer, but the Council felt it was important to ensure Y’s and Mr Z’s EHC Plans reflected their needs; and
• it would update Mrs X weekly about the progress of her children’s cases.
31. Within a few days a Council officer came out to visit Mrs X, Y and Mr Z. The notes from the visit say that:
• the Council should refer Mr Z for a social care assessment and the family needed continuing support and because of Mr Z’s age the adult social care team should assess what support he needed;
• Mrs X asked more information about what an Education Other Than at School (EOTAS) package could look like to support Mr Z; and
• Y was disturbed by the officer’s visit but did meet them to discuss his preferences.
32. Later that month the Council wrote to Mrs X and said that:
• it had secured an educational provider for Y; and
• the provider now had to complete the annual review of his EHC Plan and then the Council would be able to name it in his final EHC Plan.
33. In early February 2024 one of the schools offered a place for Mr Z. Within a few days the Council considered Mr Z’s case at a panel, but it did not approve his placement because it considered the family wanted to explore the EOTAS package.
34. In early March 2024 the Council emailed Mrs X to tell her that it had secured a 12-week placement for Mr Z.
35. Y began to attend his educational placement in early April 2024.

Analysis

Moving area

36. The SEND Regulations 2014 set out what should happen when a child moves from a different area with an EHC Plan. The new Council should provide the provision specified in the plan until it issues an updated plan.
37. Paragraph 12 explains the Council should have informed Mrs X within six weeks the plan had been transferred and if it proposes to complete a new EHC needs assessment or review the EHCP. The Council did not tell Mrs X what it intended to do with Mr Z’s or Y’s EHC Plan. This is fault and Mrs X was frustrated by the Council’s delay.
38. Paragraph 13 explains when the Council should review the plan if it is not doing a new EHC assessment. The timescales specified in the SEND regulations 2014, would require the Council to review Mr Z’s EHC Plan by March 2024, six months after the family moved to the area. The Council has not completed this review. This is fault and Mr Z's plan was not up to date as a result.
39. The Council should have reviewed Y’s EHC Plan by early April 2024, eight months after the family moved to the area. The Council named a provider for Y in January and delegated the responsibility for an annual review to the educational provider. The Council can do that, and we have not found fault with the Council’s actions in that respect.
40. The Council said that once it had named Mr Z’s educational provider it was its task to review his EHC Plan. This is not correct. In order to review Mr Z’s EHC Plan, the review meeting should have been held by February 2024. This means the planning and invitations should have been sent before February, and at that point the Council did not have an educational provider for Mr Z. This means that it was the responsibility of the Council to organise and carry out Mr Z’s annual review.

Education

41. The law requires a Council to arrange suitable education for a child it knows cannot attend school due to exclusion, illness or other reasons. The Council was aware Y and Mr Z were not attending school in September 2023. It should have ensured they received education from this time. The Council has not done that. This is fault and both Y and Mr Z missed provision for one academic term.
42. The Council stated Mrs X turned down its offer of tutoring education. The evidence it has provided of this is case notes. The case notes show the officer offered tutoring which Mrs X advised was not suitable for Mr Z’s needs. The Council did not dispute tuition would not be suitable. The Council did not offer any other educational or mentoring service to Mr Z. This is fault which contributed to Mr Z missing an academic term of education.
43. It is for the Council to decide what education is suitable, although it should be full-time unless the physical or mental health of the child is such that full-time education would not be in his or her best interests. There is no fixed definition of full-time education, but it should be equivalent to the education they would receive in school. It is recognised where a child receives one to one tuition, the hours of face-to-face provision could be fewer as the provision is more concentrated. For Mr Z the Council secured a 12-week placement at a special school from March 2024. For Y the Council secured a placement at a special school from April 2024.
44. The Council did not ensure Mr Z was provided with an education suitable to his ability prior to March 2024. This is fault and which contributed to Mr Z missing an academic term of education.
45. The Council did not ensure Y was provided with an education suitable to his ability prior to April 2024. This is fault which contributed to Y missing an academic term of education.

EHCP provision

46. I have seen no evidence that Mr Z or Y received any provision specified in section F of their EHC Plans from September 2023 until March 2024. This is fault and both Mr Z and Y missed out on the provision specified in their plans for one academic term.
47. The Council's complaint response to Mrs X did not address the lack of special educational provision for Mr Z and Y. This caused Mrs X avoidable frustration and led her to believe the Council did not understand the impact its actions had on the family.

Complaint handling

48. The Council did not follow its complaints procedure when it considered Mrs X’s complaint. It was late to acknowledge her request to escalate her complaint to stage two. This is fault.
49. This caused Mrs X avoidable frustration and meant she had to chase the Council for a response to her complaint.

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Agreed action

50. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a Council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
51. To remedy the outstanding injustice caused to Mrs X, Y and Mr Z by the fault I have identified, the Council should take the following action within 4 weeks of my final decision:
• apologise to Mrs X, Y and Mr Z for not ensuring they received education or EHC Plan provision for one academic term, not reviewing the EHC Plan within the timescales set out in legislation and for the delay in responding to her complaint. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology;
• pay Mrs X £100 as an acknowledgement of the distress, time and trouble she has spent pursuing this complaint;
• pay Mrs X £2,400 for not providing any education for Mr Z for one academic term. This money should be used for Mr Z’s benefit;
• pay Mrs X £1,500 for not providing any of the provision set out in Mr Z’s EHC Plan for one academic term. This money should be used for Mr Z’s benefit;
• pay Mrs X £3,500 for not providing any education for Y for almost two academic terms. This money should be used for Y’s benefit;
• pay Mrs X £2,500 for not providing any of the provision set out in Y’s EHC Plan for almost two academic terms. This money should be used for Y’s benefit;
• remind relevant staff of the importance of effective complaint handling; and
• issue guidance to relevant staff to ensure they are aware of the Council’s duties detailed in the Education Act 1996 to ensure all children receive a suitable education if they are unable to attend school.
52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

53. We have found fault by the Council for the delay in finalising the transfer process and for not keeping Mrs X informed about the progress of her complaint, which caused injustice to Mrs X, Y and Mr Z. The Council agreed to our recommendations and our investigation is now complete.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman