Cheshire West & Chester Council (24 004 856)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 24 Feb 2025

The complaint
The Ombudsman’s role and powers
What I have and have not investigated
How I considered this complaint
What I found
Agreed action
Final decision

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s failure to provide a school place for his son (Y) from April to September 2023. He also complained about the Council’s failure to engage with the family during the transfer of Y’s Education Health and Care Plan from a different council and about naming an unsuitable school for Y from September 2023. We did not investigate the suitability of the school named for Y from September 2023 as Mr X could have appealed to the Tribunal. We found fault in the Council’s transfer process and in its communication with Mr X. The Council’s fault caused injustice to Y and Mr X. The Council agreed to apologise, to make a symbolic payment to recognise Y’s loss of education and Mr X’s distress and to carry out some service improvements.

The complaint

Mr X complained the Council (which is also in some parts of this decision named Council 2):

failed to provide a school place for Y between April and September 2023;
did not engage with the family in relation to the transfer of Y’s Education, Health and Care (EHC) Plan and review;
lied to their Member of Parliament (MP) about its relationship with the family during the complaints process; and
placed Y in a mainstream secondary school (School 1), where his attendance was less than 60% and where he spent most of his time in isolation.

Mr X says the Council’s failings impacted Y’s education and mental health. He also says they affected the whole family, placing them under undue stress. Mr X spent much time contacting the Council to ensure there was a school place for Y from September 2023. The distress caused by the Council’s failings, Mr X says, worsened his medical condition.

The Ombudsman’s role and powers

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)
The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
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.
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.
We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
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)
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.

What I have and have not investigated

I have not investigated the suitability of School 1 named by the Council in Y’s EHC Plan from September 2023. This is because Mr X could have appealed against the Council’s decision to name this school and it would have been reasonable for him to have done so.

How I considered this complaint

I spoke with Mr X and considered the information he provided.
I made enquiries with the Council and a third party and considered the information they provided.
I reviewed the Council’s Equality policy and referred to our guidance notes “Principles of Good Administrative Practice”.
Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

What I found

Law and guidance

Appeals to the SEND Tribunal

There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued. (Children and Families Act 2014 Section 51(2))

EHC Plan transfer between councils

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)

Alternative provision

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.
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)
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)

Communication

Local authorities should support and encourage the involvement of children, young people and parents or carers by:

providing them with access to the relevant information in accessible formats
giving them time to prepare for discussions and meetings, and
dedicating time in discussions and meetings to hear their views.

(Statutory guidance Special educational needs and disability Code of Practice: 0 to 25 years paragraph 9.24)

Reasonable adjustments for people with disabilities

The reasonable adjustment duty is set out in the Equality Act 2010 and applies to anybody which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services but must think in advance about what disabled people with a range of impairments might reasonably need.

What happened

The account below is not meant to be a full summary of what happened. I have included only the events which are relevant to my decision.
Y was in Year 6 of a mainstream primary school when his family moved to the area of a different council (Council 2). The move took place at the end of April 2023.
In the second week of May 2023 the council where the family previously lived (Council 1) sent Y’s EHC Plan, EHC needs assessment reports and review documents to Council 2. Council 1 carried out the secondary transition review of Y’s EHC Plan in October 2022. It issued Y’s final EHC Plan in February 2023, naming a specific mainstream high school as his secondary placement from September 2023.
Council 2 said that due to file corruption some of the documents sent by Council 1 could not be opened at the panel at the end of May 2023. This delayed consideration of Y’s case by three weeks.
At the end of June 2023 Council 2 asked Mr X and his wife (Mrs X) for their school preference for Y. The Council told them it was consulting with the nearest mainstream primary school for the remainder of Y’s Year 6 and their nearest mainstream secondary school from September 2023. Mr and Mrs X asked for a place for Y in a special maintained school.
At the beginning of July Mr X contacted Council 2 stating Y had been without education for three months. Mr X said he had logged into the portal and had found out the outcome of the panel should have been known at the end of June. Mr X also stated he and his wife could not access the special educational needs and disabilities (SEND) portal. He asked that all the correspondence which needed reviewing was sent to them by letter and post.
The following day Mr X told Council 2 the mainstream secondary school which the Council intended to name in Y’s EHC Plan from September 2023 (School 1) had contacted them to say it could not offer a place for Y as it could not meet his needs.
At the end of July 2023 Mr X complained to Council 2 about the lack of education and support for Y since April 2023. The only education Y received was a few hours in the local primary school in the last week of the summer term. Mr X said Council 2 failed to identify a secondary school for Y as School 1 told the parents it could not meet Y’s needs. Mr X said he could not access Council 2’s system used for sending documents.
A few days later Mr X’s MP raised with Council 2 Y’s lack of education since April 2023 and the Council’s failure to find a secondary school for him from September 2023.
At the beginning of August Council 2 told Mr and Mrs X it had transferred Y’s EHC Plan to Council 2’s format and named School 1 from September 2023. A few days later Y’s final EHC Plan was issued. In the accompanying letter Council 2 told the parents they could view and download Y’s EHC Plan via Council 2’s EHC Hub. It said: “If you require any assistance in accessing the EHCP online or would like it provided via an alternative method please contact us.” The letter also advised on their appeal rights and the availability of Council 2’s SEND support service.
Council 2 responded to the MP at the end of August 2023 saying it had named School 1 for Y from September 2023. Council 2 stated there were no complaints from Mr X registered with its Education and Inclusion Service.
In November 2023 the Council carried out an Annual Review of Y’s EHC Plan. School 1 sent the review report to Council 2 at the beginning of January 2024.
In the first week of March 2024 the MP told Council 2 Mr and Mrs X could not use Council 2’s SEND Hub due to Mr X’s health difficulties and Mrs X’s low digital confidence. It seems that Council 2 failed to make any adjustments for them to ensure their access to Y’s EHC Plan documents. As a result Mr and Mrs X could not review and comment on the proposed amendments to Y’s EHC Plan. The MP stated Y was not receiving suitable education at School 1.
In his response Council 2’s officer said he could not find any evidence of the request for reasonable adjustments either in writing or verbally. Once Council 2 knew the extent of Mr and Mrs X’s challenges in accessing the Hub, its software provider could advise on the potential adjustments. Council 2’s officer also said the word version of Y’s EHC Plan was sent to Mr X by email. It also confirmed Council 2 had made Mr and Mrs X an offer of direct email correspondence.
Council 2 issued Y’s post-review amended EHC Plan at the beginning of April 2024.
A few days later Council 2 sent Mr X its stage one response to his complaint. Council 2:

partially upheld Mr X’s complaint about its failure to provide Y with a school place between April and September 2023;
upheld Mr X’s complaint about the delay in transferring Y’s EHC Plan from Council 1 to Council 2;
did not uphold Mr X’s complaint about the lack of sufficient communication from Council 2 during the EHC Plan transfer;
did not uphold Mr X’s complaint about his lack of access to Y’s EHC Plan and not providing reasonable adjustments when sending information and documents. Council 2 said “… at any point a copy of the EHCP could have been requested via email or a paper copy issued in the post. There is no evidence that this has been requested”.

Mr X asked for his complaint to be considered at stage two. After further correspondence, during which Council 2 asked Mr X to clarify what he was still unhappy about, Council 2 responded at the end of May 2024. It confirmed its findings at stage one and the offer of £500 to recognise the injustice caused by Council 2’s failings. The senior manager responding at stage two said: “I also took the opportunity to review our emails to see if you had logged any issues with accessing the Hub and I couldn’t find any”.

Analysis

In this analysis I will be referring to Council 2 as the Council.

Transfer of EHC Plan

The Council admitted it had delayed the transfer of Y’s EHC Plan after receiving EHC Plan and other documents from Council 1 in mid-May 2023. The Council had 15 working days to complete the transfer, which would have coincided with the end of half term. In fact the Council issued Y’s final EHC Plan transferred from Council 1 in the second week of August 2023.
The Council said part of the delay was caused by technical circumstances beyond its control. The Council failed, however, to provide any evidence this had been the case.
The delays in transferring Y’s EHC Plan were fault. The injustice caused by it would have been limited, however, if the Council had communicated properly with Y’s parents throughout the process and had considered its duties to ensure Y received education during the time there was no school place for him.
At least from mid-May 2023 the Council knew Y had moved to its area, was not receiving education and had an EHC Plan. The Council should have contacted Y’s parents without delay to:

check their preference for Y’s primary and secondary school;
discuss Y’s education until the school place for Y could be found;
consider its duty to secure education for children who are out of school because of exclusion, illness or for other reasons.

On the balance of probabilities, allowing some time for making educational arrangements, if not for the Council’s failings Y should have received some education from the beginning of June 2023 until the end of July 2023.
In the recent complaint 23 017 458 the Council agreed to provide an action plan which sets out how, in future, it will overcome difficulties in delivering education to young people who have moved into its area. We will be monitoring the Council’s actions through our casework to ensure improvements.

Record keeping

The way the Council keeps its records for children with EHC Plans contributes to the failings in delivery of its services. This is because:

the records are not organised chronologically;
all actions and communication are not recorded in the case notes;
parents’ requests are not recorded in a way that would be accessible to every member of the Council’s staff reviewing the case;
there is no system of recording the adjustments agreed by the Council to its communication with the parents.

Keeping proper and appropriate records is necessary for councils to comply with the principles of good administrative practice as outlined in our guidance notes “Principles of Good Administrative Practice”. The principles of being open and accountable as well as service-user focused cannot be achieved without keeping robust and well organised records.
The Council’s failure to keep proper records for Y is fault. It caused injustice to Mr X as:

the Council failed to record and subsequently respond on time to Mr X’s complaint raised in July 2023, which meant Mr X was getting frustrated by the lack of the Council’s response and felt he had no other option but to seek help from his local MP;
the Council failed to record Mr X’s request for the adjustments to communication from the beginning of July 2023. The Council kept asking Mr and Mrs X about their needs and what changes in communication would help them but failed to refer to the correspondence from July 2023. The unawareness of Mr X’s request for adjustments was also reflected in the Council’s response to the MP from March 2024 and in its stage two response from May 2024. I cannot say the Council lied to the MP as this would imply deliberate misinformation. It is more likely that the way the Council recorded its actions and communications made it so difficult to access the relevant information that some of it got missed.

Reasonable adjustments

One of the Council’s objectives included in its Equality policy is the review of the Council’s approach to communication to develop a more robust approach both internally and externally. The Council undertakes to review its communication with customers, service users and residents to ensure it is accessible.
The Council uses a special portal called “Hub” for the secure storage of the EHC Plan documents. It needs, however, to make provision for people who might struggle or be unable to access this portal for technical reasons or because of their disability.
I found that when communicating with Mr and Mrs X the Council failed to take proper account of their needs. After Mr X’s message in early July 2023 the Council should have explored the extent of Mr and Mrs X’s needs and should have decided whether it would apply any adjustments to its communication with them. The decision should have been recorded and clearly accessible to any members of the Council’s staff.
The Council’s failure to do so was fault which caused injustice to Mr X. He and his wife struggled with accessing Y’s EHC Plan documents, which increased their distress. Despite mentioning in its correspondence the option of asking for adjustments, the Council failed to act upon Mr and Mrs X’s requests.

Agreed action

To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:

apologise to Mr X and Y for the injustice caused to them by the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended;
pay Mr X £900 to recognise the loss of Y’s education in the second part of the summer term 2023;
pay Mr X £500 to recognise the distress caused to him by the Council’s failings. This is what the Council offered in its stage one response;
arrange a meeting with Mr and Mrs X to discuss their communication needs. Following this meeting the Council will make a decision whether it agrees to apply any adjustments. The Council will send this decision to Mr and Mrs X and will include it in Y’s EHC Plan records, so that it is easily accessible to any member of the Council’s staff.

The Council will provide the evidence that this has happened.

We also recommend the Council within three months of the final decision:

review the way it keeps its EHC Plan records to ensure they are ordered, easily accessible and record all the Council’s actions and communications with the parents;
decide on a consistent way of recording any requests for adjustments from the parents or young people and ensure these requests and the Council’s decisions on any adjustments are clearly recorded in the children’s files.