Summary: Mr X complained that the Council has failed to explain the education, health and care plan process to him as a new parent when a looked after child moved in with him and his wife; failed to offer any alternative provision; and delayed the process. We find the Council was at fault for failing to consider its section 19 duties. This meant Mr X’s adoptive son missed out on education. The Council has agreed to make several recommendations to remedy this injustice caused by fault.

The complaint

1. The complainant, Mr X, complains the Council has:
1. failed to explain the education, health and care (EHC) plan process to him as a new parent when a looked after child moved in with him and his wife, Mrs X;
2. failed to offer any alternative provision; and
3. delayed the process.
2. Mr X said this has caused him and Mrs X significant distress. He said his adoptive son missed out on education.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
7. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
8. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
9. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
10. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
11. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
12. 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)

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What I have and have not investigated

13. I have investigated points a, b and c of the complaint between August 2023 and March 2024.
14. I have not investigated whether there was a failure to provide alternative provision after March 2024. This is because Mr and Mrs X appealed the named placement. As stated in paragraphs 7, 8 and 9, this is outside our jurisdiction.
15. Mr and Mrs X also raised concerns about the content of the EHC Plan that was sent to schools during the consultation process. I have also not investigated this as I consider this to be too closely linked to the appeal.
16. Mr X questioned why the Council did not look into his parental rights before sending him information about his adoptive son. But I have not seen any evidence to suggest this has been raised to the Council. As stated in paragraph 10 we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply.

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How I considered this complaint

17. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
18. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

EHC Plans

19. 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. 

Transfer of EHC Plan between councils

20. 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

21. 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.
22. 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)

Summary of the key events

23. Mr and Mrs X contacted the Council in August 2023. They said they were in the process of adopting B who would be moving to the area in October 2023. Mr and Mrs X were signposted to the special educational needs and disabilities information advice and support service (SENDIASS).
24. Mrs X contacted SENDIASS in the same month to ask for some guidance around securing a school place for B. SENDIASS provided further details around the process. They also provided a link to fact sheets on a range of SEND topics, including EHC Plans.
25. The previous council area where B moved from (council Y) provided B’s draft EHC Plan. It stated B’s primary type of special education needs was social, emotional and mental health (SEMH). The category of special educational need was noted as communication and interaction.
26. In November 2023, the Council asked Mrs X for details of what schools she wanted it to consult with. It asked whether B would still be attending school in the Council Y area until a new placement was named.
27. Mrs X confirmed B moved in with them on the 22 November 2023. She said B was not currently in school. She attached a list of preferred schools, and the Council agreed to begin consultations.
28. The Council issued a draft EHC Plan in the following month.
29. Mrs X asked for an update in January 2024. She said B had been out of education since November 2023 and asked how long the process would take. In response the Council asked if they would like some information about tuition whilst it consults with placements. Mrs X agreed to this.
30. Mrs X asked the Council for some further information about what the tuition would involve.
31. In February 2024, it was noted most schools the Council had consulted with were either at capacity or could not meet B’s needs. The Council identified school C could meet B’s needs. But Mr and Mrs X said it was unsuitable. Mr and Mrs X said the Council gave the school false information about B’s medical condition.
32. Mrs X told the Council she had spoken with council Y. She said B’s EHC Plan had been altered to say his primary needs were SEMH related. But she said it should be social and communication.
33. The Council told Mrs X she should soon hear from the tutoring service. It also sent Mrs X a copy of the draft EHC Plan. But it said it could not amend information written by the educational psychologist.
34. After Mrs X raised some concerns, the Council explained the EHC Plan sent to it by council Y stated B’s primary needs were SEMH related. It agreed to remove this and resend consults.
35. The Council finalised the EHC Plan in March 2024 naming school C. Mr and Mrs X appealed against the named school.
36. A further EHC Plan was issued in May 2024 naming a new placement.

Complaint to the Council

37. In Mr X’s complaint to the Council, he said:
• the communication with the Council has not been good and the process has been slow;
• the Council agreed to some tuition until a placement was secure, but they have heard nothing since;
• he was asked if he wanted changes made to the draft EHC Plan, to then find out there was a new draft plan;
• school C was unsuitable; and
• the Council was going to finalise the EHC Plan without waiting for responses from their preferred school choice.
38. In the Council’s complaints response, it said:
• consultations with schools started on the 10 January 2024;
• the draft plan provided by council Y was missing information and very limited;
• the educational psychology report stated B had social, communication and SEMH needs;
• the draft EHC Plan was drafted as best as it could with the advice provided;
• school C could meet B’s needs. The plan was finalised which opened up Mr and Mrs X’s right of appeal; and
• a place at the preferred school placement had now been agreed.

Analysis- was there fault by the Council causing injustice?

Part a of the complaint

39. Mr and Mrs X initially contacted the Council in August 2023. The Council told us it signposted them to SENDIASS. I have not seen evidence of this. But I have seen evidence of emails between Mrs X and SENDIASS. SENDIASS provided them with details about the process. They also provided a link to fact sheets on a range of SEND topics, including EHC Plans.
40. I have not seen any evidence to suggest Mr and Mrs X asked the Council to explain the process. Based on the evidence provided, SENDIASS provided details about the process. This is what we would expect, and I do not find fault by the Council.

Part b of the complaint

41. The Council were aware in August 2023 that B would be moving to the area. Mr and Mrs X confirmed he had moved in, in November 2023 and that he wasn’t currently in school. At that point, the Council should have considered whether its section 19 duties applied.
42. In January 2024, the Council asked Mr and Mrs X if they wanted information around tuition for B whilst it was looking for a school placement which they agreed to. But there is no evidence of any further action taken. This is fault which meant B received no education.
43. The guidance also says when a child can no longer attend their previous placement specified in the EHC Plan after the transfer to a new area, the new authority must place the child temporarily at an appropriate educational institution other than that specified. This is until the EHC Plan is formally amended. But as stated above, B missed out on education. Mr X said during this time, he and Mrs X spent money on educational apps and one-off resources. He also said this caused them both significant distress and prevented Mrs X from returning to work earlier.
44. In acknowledgement of missed education, we recommend a payment per term. I consider a suitable remedy in this case to be £2000 for the one term B missed out on due to fault. In determining this I have taken into account that B received little education provided by Mr and Mrs X.

Part c of the complaint

45. The guidance states when an EHC Plan has been transferred, 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.
46. In this case B moved in with Mr and Mrs X in November 2023 and the EHC Plan was transferred as a draft. The Council then issued its own draft EHC Plan the following month. It finalised the plan in March 2024. During this time, the Council began consulting with schools in January 2024 and again in March 2024.
47. In my view, the plan was finalised within a reasonable time. There is no evidence to suggest there has been any unnecessary drift in this case.

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Action

48. To remedy the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• write to Mr and Mrs X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
• following submission of satisfactory receipts to the Council, reimburse Mr X for money he spent on B’s education between November 2023 and March 2024;
• pay Mr X and Mrs X £200 in recognition of the distress caused to them by the fault identified; and
• pay Mr X £2000 for the educational benefit of B, to recognise the impact of its failings on B’s education (between November 2023 and March 2024).
49. Within two months of my final decision the Council has agreed to issue written reminders to the relevant staff to ensure they are aware of the Council's section 19 duties.
50. The Council should provide us with evidence it has complied with the above actions.

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Final decision

51. There was fault by the Council. The actions the Council has agreed to remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman