Summary: Ms X complains on behalf of Y, that he was not provided with any education specified within his Education, Health and Care plan between January 2020 and April 2021. She says the Council missed an opportunity to secure a placement for him at a suitable school as it did not agree to fund it in time. Ms X also says that complaints that were made to the Council were responded to with inaccurate information. We find fault with the Council for the delay in funding the education placement for Y and for its complaint handling. The Council has suggested remedies during this investigation which are sufficient to remedy the injustice caused to Y, and to improve its services for the future.

The complaint

1. Ms X complains on behalf of Y that the Council;

• Did not provide any of the education specified in his Education, Health and Care (EHC) plan between January 2020 and May 2021. She says this was an important time for Y, as he was taking his GCSEs.
• Did not agree funding for a suitable school placement that had been found, which led to it being lost.
• Did not adequately respond to his complaints, such as dismissing his complaint by saying another council was responsible, which has caused Y additional time and trouble pursuing his complaint.

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The Ombudsman’s role and powers

2. 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)
3. If we are satisfied with a council’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)
4. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended)

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How I considered this complaint

5. I read the complaint and the Council’s responses. I spoke to Ms X on the telephone and made enquiries of the Council. I researched relevant law and guidance.
6. I invited Ms X and the Council to comment on the draft decision and considered any comments made in response.

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What I found

7. Section 24 of the Children and Families Act 2014 details the circumstances where a local authority is responsible for a child or young person. It says a local authority in England is responsible for a child or young person if he or she is in the authority’s area and has been—

(a)identified by the authority as someone who has or may have special educational needs, or

(b)brought to the authority’s attention by any person as someone who has or may have special educational needs.

Case Law

8. The courts have determined that a child or young person will only be in the local authorities area where he or she lives there permanently. Considering whether a child or young person is ‘ordinarily resident’ in the local authority’s area will be of assistance, but the question of whether a child or young person is in the local authority’s area is a question of fact for the local authority. JG v Kent CC 2016 ELR 396

Special educational needs and disabilities (SEND) code of practice (COP) 2015

9. A significant proportion of looked after children live with foster carers or in a children’s home and attend schools in a different authority area to the local authority that looks after them. Local authorities who place looked after children in another authority need to be aware of that authority’s Local Offer if the children have SEN. Where an assessment for an EHC plan has been triggered, the authority that carries out the assessment is determined by Section 24 of the Children and Families Act 2014. This means that the assessment must be carried out by the authority where the child lives (i.e. is ordinarily resident), which may not be the same as the authority that looks after the child. If a disagreement arises, the authority that looks after the child, will act as the ‘corporate parent’ in any disagreement resolution. (Section 10.8 Special educational needs and disabilities code of practice 2015)
10. It is the looked after child’s social worker (in close consultation with the Virtual School Head in the authority that looks after the child) that will ultimately make any educational decision on the child’s behalf. (Section 10.9 Special educational needs and disabilities code of practice 2015)
11. Where a child or young person moves to another local authority, the ‘old’ authority must transfer the EHC plan to the ‘new’ authority. The old authority must transfer the EHC plan to the new authority on the day of the move, unless the following condition applies. Where the old authority has not been provided with 15 working days’ notice of the move, the old authority must transfer the EHC plan within 15 working days beginning with the day on which it did become aware. (Section 9.157 Special educational needs and disabilities code of practice 2015)

Education provision

12. Y is a looked after child (LAC) to the Council’s Children’s Trust and has been in care since September 2015. He was placed at a children’s home in another council’s area in March 2019. Y has complex emotional and behavioural difficulties and he has an EHC plan.
13. Ms X said that Y’s education placement broke down and he did not receive any education between January 2020 and May 2021. She said this was an important time for Y as he was studying for his GCSEs.
14. Ms X also said that a suitable school placement had been found for Y during the time he was out of education, but this was lost as the Council did not agree to provide the funding in time.
15. In response to my enquiries, the Council said that Y did not receive any education provision between January 2020 and the start of February 2021. It said from February 2021 Y received 25 hours provision which was a mix of online learning and direct teaching support. It said the package was then increased to include additional one to one support. The Council said this provision continued until July 2021. This provision was arranged by the other council where Y resided.
16. The Council said a full-time education placement was secured and started in September 2021. It said Y’s EHC plan was amended to reflect this.
17. The Council also said that whilst it retains financial responsibility for Y’s education, the legal responsibility to meet the provision specified in Y’s EHC plan has been the responsibility of the council where he has lived since 2019. The Council said because of that it cannot be held responsible for Y’s lack of education provision.
18. The Council said that in September 2020, Y’s new council contacted it and said it had found a suitable placement for Y and asked the Council to agree funding for it.
19. The Council said it was experiencing significant staffing issues when it received the request, and this impacted its ability to work effectively with other agencies. It said that in Y’s case, its delay in responding meant the suitable education placement that had been identified for Y was withdrawn.
20. The Council acknowledges it was at fault for Y’s placement being lost. It has written to the Ombudsman and offered to apologise to Y and to pay him £500 for the delay which led to the loss of the suitable education placement that had been identified. It has also offered to review its procedures for agreeing funding for LAC placed outside its area.
21. The Council said it is working to make immediate and long-term improvements to ensure it is meeting its legal obligations to children and young people with special educational needs, and their families, to prevent errors like the ones in this case from occurring.

Complaint handling

22. Y made a complaint to the Council about his lack of education provision in March 2021. The Council issued a stage 1 response that Y should contact his new council as it is responsible for his education provision.
23. Ms X asked for Y’s complaint to be moved to stage 2 of the Council’s complaint’s process. The Council undertook a stage 2 review and found the stage 1 response did not adequately address Y’s concerns and apologised.
24. It also said that the Council is financially responsible for Y’s education, and it apologised for not communicating that fact.
25. In addition to the apology already provided, the Council has written to the Ombudsman and offered to pay Y £300 for his time and trouble pursuing his complaint.

Analysis

Education provision

26. Y was without education for a significant period in what was an important time preparing for his GCSEs. There is also disagreement between Ms X and the Council as to when suitable education did start to be provided.
27. The Council’s view that it is not legally responsible for Y’s education provision is supported by the Children and Families Act 2014, SEND COP and relevant case law. Because of that, I cannot investigate this part of the complaint further, or find fault by the Council with regards the education provision not being met. Any complaint about the lack of provision should be made to the Council where Y currently lives.
28. The Council did retain financial responsibility for Y’s education. Its delay in processing the request for funding when a suitable school placement was identified led to the place being lost. This was fault.
29. It is welcomed that during this investigation, the Council has written to the Ombudsman to acknowledge its fault and offer suitable remedies to the injustice caused to Y, and to commit to making service improvements.
30. During this investigation, I have also examined the involvement of relevant roles within the Council that are expected to take action to resolve Y’s education situation. These included the Virtual School Head, Social Worker, and the Independent Reviewing Officer, as well as the Council’s overall responsibility as a corporate parent. I did not find any fault in how these different roles had carried out their responsibilities.
31. I have also inspected Y’s care plans and personal education plans. I do not find any fault in how these documents had been completed and maintained at regular intervals.

Complaint handling

32. The Council has acknowledged its complaint response to Y’s stage one complaint was not sufficient.
33. The Council has written to the Ombudsman to offer a suitable remedy for the time and trouble Y has suffered pursuing the complaint.

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Agreed action

34. To remedy the injustice caused by the Council’s fault detailed in this statement, the Council has agreed to take the following action within one month of a final decision.

• Apologise to Y and pay him £500 for its delay in agreeing the funding for an identified school placement for him.
• Pay Y £300 for his time and trouble pursuing his complaint.

35. The Council has also agreed to review its procedures for agreeing funding for LAC placed outside its area. This should be completed within six months of a final decision.
36. Evidence of having completed the above remedies should be sent to the Ombudsman.

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Final decision

37. I close this investigation with a finding of fault against the Council for the reasons detailed in this statement. I have set out recommendations which the Council has agreed to take to remedy the injustice caused by its faults.

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Investigator's decision on behalf of the Ombudsman