Summary: Mrs Y complains on behalf of Miss X about the way in which the Council managed her family’s move out the Council’s area in April 2023. She said that because of the Council’s failures the family suffered avoidable distress and the children missed out on education and crucial social services support. We found the Council was at fault for the delay in transferring some of the educational documents to the new Council and the delay in holding a transfer meeting. The Council agreed to our recommendations on what it should do to remedy the injustice its actions caused Miss X and her family.

The complaint

1. Mrs Y complains on behalf of Miss X about the way in which the Council and the new Council managed her family’s move between the authorities in April 2023.
2. Mrs Y says the Council failed to:
• plan for a transfer of the family’s services in place;
• send the social care information to the new authority promptly;
• send the Special Educational Needs information to the new authority promptly;
• keep Miss X’s family’s case open until the new authority accepted the responsibility for the services; and
• transfer all the family’s health records to the new authority.
3. She says that because of this the children missed out on social care and special educational needs provision that they were entitled to. It also meant that for six months Miss X had to drive her children back to the Council’s area for school and she continues to have to drive to Bradford for her children’s health appointments and prescription medication.
4. Mrs Y would like the Council to:
• apologise and accept responsibility for its actions;
• make service improvements to ensure this does not happen to another family;
• transfer the family’s health records as soon as possible so that the family can begin to access health services in the area they live in.

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The Ombudsman’s role and powers

5. 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)
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
10. 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

11. I have not investigated Mrs Y’s complaint about the failure to transfer the family’s medical records. This is because we cannot consider the actions of health professionals. Instead, we have referred Mrs Y to the Parliamentary Service and Health Ombudsman who may be able to assist her with her concerns about the actions of the GP surgery.

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How I considered this complaint

12. As part of the investigation, I have:
• considered the complaint and Mrs Y's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
13. Mrs Y, Miss 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

Education, Health, and Care Plan (EHC Plan)

14. The Children and Families Act 2014 (the Act) sets out the framework for supporting special educational needs (SEN). The Act is supported by Special Educational Needs and Disabilities Regulations 2014 (the Regulations) and the Special Educational Needs Code of Practice 2015 (the Code). These contain detailed guidance to local authorities about how they provide support for children and young people with SEN.
15. An EHC Plan is a legal document which sets out a description of a child's special educational needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health, and social care.
16. The Council can only issue an EHC Plan after a child or young person has gone through the assessment. At the end of that process the Council must decide whether to issue a Plan or not.
17. If the Council decides to issue a Plan, it must first issue a draft for the parents or young person to consider. The Council does not have to provide exactly what the parents request, but it should be able to explain why the EHC Plan meets the needs of the child.
18. The Ombudsman cannot investigate the Council’s decision whether to conduct an assessment, and the content of the EHC Plan, as these are appealable to SEND Tribunal.
19. The Ombudsman can look at delay in the assessment and creation of an EHC Plan as well as failure by the Council to deliver the provision within an EHC Plan, as long as they are not connected to, or a consequence of, an appeal.
20. When a child or young person moves to another Council, the Council must transfer the EHC Plan to the new Council within 15 working days beginning with the day on which it became aware of the move. (Special Educational Needs and Disability Regulations 2014) 

Child in need

21. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
22. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

23. Where a child in need has moved permanently to another council’s area, the Council should ensure that it shares all relevant information, including a child in need plan, with the new Council as soon as possible.
24. The new Council should consider if it needs to continue the support and what services to provide based on the timely re-assessment of the child’s needs. The original Council should support the family in the intervening period.

What happened

25. Miss X has three children, S, B and C. They all have special educational needs (SEN) and in 2022 Miss X asked the Council for an EHC Plan assessment for S and B. Initially the Council refused the assessment request and Miss X appealed this decision to SEND Tribunal. In March 2023 the Council decided not to contest her appeal and began the EHC Plan assessments.
26. All three children are children in need, which means they are more vulnerable than other children that may need an EHC Plan.
27. In early March 2023 the Council agreed to make direct payments to support B’s needs. The Council said that it only makes direct payments once a family identifies a provider to deliver the services. The Council told us it had no evidence to suggest Miss X advised that she had found someone to deliver the services to B, and so it never made any direct payments to her.
28. In early April 2023 Miss X asked the Council to assess C for an EHC Plan.
29. Within a few weeks Miss X told the Council she had been offered a house in the new Council’s area.
30. In mid-April 2023 Miss X attended a Child in Need (CIN) meeting at her children’s school and she told the professionals that her family were moving to the new Council’s area.
31. At the end of the month the family moved into the new Council’s area, and Miss X confirmed this to the Council on the day of her move.
32. The following day Miss X’s case worker asked the relevant department to move the children’s cases to the new Council.
33. Around the same time Miss X provided her comments on the draft EHC Plans for S and B and asked the Council for a meeting to talk about the Council’s draft EHC Plans.
34. In early May 2023 the Council told the new Council that Miss X had asked for an EHC Needs Assessment for C.
35. A few days later Mrs Y complained on behalf of Miss X to the Council about the delay in transferring the educational case notes to the family’s new Council. The following day the Council confirmed that it had sent S’s and B’s case notes to the new Council.
36. In mid-May 2023 the Council issued its response to Mrs Y’s complaint. It said that it had already transferred the children’s SEN records to the new Council.
37. Miss X chased the Council for a response to her request for an EHC Plan assessment of C’s needs.
38. Around the same time the Council emailed Mrs Y and said that it would:
• implement her comments to the EHC Needs Assessments for S and B to make sure there were no errors, and share them with her within four days;
• not close the social care file for the family until after the new Council completed its assessment;
• organise a CIN review and invite the new Council’s representative to attend; and
• continue to provide payments for S’s and B’s short breaks until the new Council completes its assessment.
39. Two days later the new Council confirmed that it received draft EHC Plans from the Council.
40. At the end of May 2023 Mrs Y asked the Council to consider her complaint further. Around the same time, the new Council asked the Council for any EHC Plan records it had for C. The Council responded on the same day, and sent the EHC Needs Assessment requests it had for C.
41. Around the same time the Council chased the new Council for an update about the family’s social care assessment. The new Council said that it was in the process of completing the assessment.
42. In early June 2023 Mrs Y chased the Council for an update as the new Council was not yet providing any support to the family.
43. In mid-June 2023 the Council organised a transfer meeting. Representatives from both councils attended the meeting. The meeting minutes show that:
• the Council had sent over all the relevant documents to the new Council;
• the new Council would continue with the CIN process; and
• the new Council would update Miss X about the progress of securing school places for S, B and C, which would have to go through the normal admissions process if the final EHC Plans were not ready.
44. The Council’s records also show that to help the family with the move the Council agreed to fund four weeks of biweekly therapy sessions until early July.
45. The following day, the Council’s social care department closed its social care involvement with the family. It said it did so, because it had only committed to being involved until the new Council had completed its assessment of need and considered the children were CIN. The Council said this happened during the transfer meeting the day before. Mrs Y disputes this, and said that the new Council had not completed its family assessment until August 2023.
46. In mid-June 2023 Mrs Y sent an additional complaint to the Council about the fact that it had closed its involvement and the family was left with no support.
47. Within five days the Council provided a response to Mrs Y’s additional complaint and said it had kept the commitments it made to the family in May 2023.
48. The Council held a virtual meeting with Mrs Y and Miss X in early July 2023.
49. Mrs Y chased the Council for its stage two response to her complaint in early August 2023. The Council told her that it had missed her request and that it would allocate it urgently.
50. The Council issued its final response to Mrs Y’s complaint in late August 2023. It said that:
• the Council was late with transferring some EHC Plan documents to the new Council,
• the Council agreed to direct payments for B and some additional activities for S, however it was not unusual to take time to implement this. Following the meeting in June 2023 the social worker asked for an additional eight hours of therapy provision even when the family where no longer living in the Council’s area; and
• it did not hold the transfer CIN meeting in a timely manner, although there was no legal requirement for when this should have taken place.
51. In early October 2023 Mrs Y contacted the Council with her comments on its complaint response. She said that the Council did not adhere to the statutory timescales for completing the actions related to the family’s move to the new Council and this caused the family a significant injustice considering all three children were children in need.
52. The Council told Mrs Y that there were no timescales for holding a transfer meeting, but said it provided some support to the family as a goodwill gesture.
53. At the end of the month Mrs Y told the Council that it had closed the case before the new Council accepted it and that the meeting did not take place until 15 June 2023, almost two months after the move. This meant that for a period of time the family was left without support in place.
54. The Council said it transferred the draft EHC Plans to the new Council in May 2023, and it was up to the new Council to progress the SEN assessment and provision from that point.
55. Mrs Y and Miss X were unhappy with the Council’s complaint responses and soon after the Council shared its final position with them, Mrs Y approached the Ombudsman and asked us to investigate her concerns.

Analysis

Transfer of EHC Plan documents to the new Council

56. The Council’s records show that Miss X told it she had been offered a house in the new Council’s area six days before the CIN meeting in mid-April 2023. This means the Council knew of Miss X’s intention to move and could have started some of the preparations to ensure a swift transfer of all relevant SEN records to the new Council. This is not a legal requirement, however we would consider this to be a good administrative practice the Council failed to follow.
57. Miss X told the Council that she was moving during a CIN meeting on 19 April 2023, and the family moved on 24 April 2023. This means the Council had three working days’ notice of the family’s move. The legislation says that in cases where a Council has less than 15 working days’ notice of the move, it has to transfer the documents to the new Council within 15 working days beginning on the date of the family’s move. This means that the Council should have transferred the EHC Plans by 17 May 2023.
58. The Council’s records show that it had transferred S’s and B’s educational files to the new Council in early May 2023 and within 6 days of each other. The Council sent those within the 15 working days’ time limit and is not at fault for doing so.
59. However, the Council failed to send C’s documents to the new Council within the required timeframe. This is fault. Additionally, Miss X asked the Council for the assessment on three separate occasions, and it was only after the new Council asked for information that the Council shared C’s file with it. This caused Miss X avoidable distress and contributed to the delay in the new Council progressing C’s EHC Needs Assessment.
60. We welcome the Council’s comments that it has put in place additional measures to ensure that EHC Plan document transfers happen within the statutory timeframes. Because of this we have decided not to ask the Council to make any further service improvements as we consider the Council has already recognised its need for improvements to ensure the delays are unlikely to happen in the future.
61. Mrs Y said that because of the Council’s actions the children missed out on the SEN provision they were entitled to. However, at the time of the move, the children did not have a finalised EHC Plan and because of this there was no legal requirement to put in place the provision from section F of their plan. Because of this we do not consider the children missed out on any SEN provision, as it is likely that they would not have received this until the Council finalised the EHC Plan even if they did not move.

Transfer of social care files

62. The Council confirmed that it transferred the family’s social care file to the new Council in early May 2023. The transfer included a referral form, the most recent assessment and the CIN plan. We consider the Council acted without fault as the legislation requires it to transfer information “as soon as possible” and we consider the Council has done this.
63. The Council accepted that it did not hold the transfer CIN meeting in a timely manner. This is fault. It caused Miss X avoidable distress and uncertainty about what was happening and the progress of the transfer of support for her family.
64. Additionally, the Council’s SEN caseworker did not attend this meeting. There is no requirement for the officer to attend, however it is likely this would have been helpful when handing over the casefiles for three children in need with SEN.
65. We consider the Council acted without fault when it closed its case following the transfer meeting in mid-June 2023. This is because:
• the new Council confirmed it had completed its family assessment, which is supported by the new Council’s records;
• it offered to continue to provide further services to the family until early July to allow the new Council to make suitable arrangements; and
• the law only requires the Council to keep its records open in the interim period between the family’s move and the new Council completing its re-assessment.

Complaint handling

66. The Council missed Miss X’s request to consider her corporate complaint further. This is fault. This caused Miss X avoidable distress and meant that she had to wait longer to know the Council’s final position about the issued she was raising.

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Agreed action

67. Within one month of the date of the final decision statement, the Council will:
• apologise to Miss X for the delay in transferring C’s EHC Plan assessment request within the statutory deadline, the delay in holding a CIN transfer meeting and with the support he needed in transitioning to his secondary school and the distress and frustration this has caused them. The Council should refer to our guidance on making an effective apology;
• pay Miss X £400 to recognise the avoidable distress and uncertainty the Council’s fault identified in this decision caused her.
68. The Council should provide us with evidence it has complied with the above actions.

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Final decision

69. We have found the Council was at fault for delaying the transfer of some of the educational documents, and the delay in holding a CIN transfer meeting. This caused Miss Y avoidable distress and uncertainty. The Council agreed to our recommendations on what it should do to address the injustice arising from its faults identified in this draft decision statement. Our investigation is now complete.

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Investigator's decision on behalf of the Ombudsman