Summary: Miss X complained there was a failure to find a suitable education placement, and a lack of alternative educational and EHC provision for her son following a move to a new council area. She also complained about communication issues and a refusal to consult a particular school. We found there was initial delay in taking action and a failure to review her son’s EHC plan within the required timescales. This caused frustration and distress for which we recommended a remedy. We could not consider elements of Miss X’s complaint affected by appeal rights.

The complaint

1. Miss X complains that the Council:
• failed to find her son a suitable educational placement following their move to the area.
• failed to provide suitable alternative education for her son while they find a placement.
• failed to provide EHC support as specified in her son’s EHC plan.
• refused to consult their preference of school in around November/Dec 2022.
• failed to communicate with her properly about what was happening.

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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 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)
3. 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

4. I have investigated the issues Miss X raised. However, the availability of appeal rights to challenge the content of EHC plans affects our jurisdiction to consider complaints in full. Case law has established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters that can be appealed. This affects our jurisdiction to investigate where appeal right exist. It means we have not been able to consider all of the complaint. This is explained further in the relevant sections of this statement.

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How I considered this complaint

5. I spoke to Miss X and considered the information she provided. I asked the Council for information and considered its response to the complaint.
6. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

SEN Code

7. Where a child or young person moves to another local authority, the SEN Code requires the ‘old’ authority to transfer the EHC plan to the ‘new’ authority. Provided the old authority has been given 15 working days’ notice of the move, it must transfer the EHC plan to the new authority on the day of the move. If less notice has been given it must transfer the EHC plan within 15 working days beginning with the day on which it become aware. The old authority should also transfer any opinion it has received under the Disabled Persons (Services, Consultation and Representation) Act 1986 that the child is disabled.
8. Upon transfer of the EHC plan, the new authority becomes responsible for maintaining the plan and for securing the special educational provision specified in it.
9. Paragraph 9.159 says that the requirement for the child or young person to attend the educational institution specified in the EHC plan continues after the transfer. However, where attendance would be impractical, the new authority must place the child or young person temporarily at an appropriate educational institution other than that specified, until the EHC plan is formally amended.
10. Paragraph 9.160 states the new authority must tell the child’s parent or the young person, within six weeks of the date of transfer, when they will review the plan and whether they propose to make an EHC needs assessment. Paragraph 9.161 states that the new authority must review the plan within three months of the plan being transferred, or within 12 months of the last review/the start of the EHC plan.
11. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education, or name a different school. Only the tribunal can do this.

Relevant Case Law

12. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

Education Provision

13. 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. (Education Act 1996, section 19).
14. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)

What happened

School Placement

15. Miss X’s son, referred to as Y in this statement, has an EHC plan. It named a mainstream school in the midlands.
16. On 7 July 2022 the Council received notification from a council in the midlands that Y was moving to Bromley. The Council provided us with various documents it received about Y’s needs dating back to 2019.
17. On 20 July 2022 an Educational Psychologist (EP) from Y’s school in the midlands wrote to the Council setting out her view on Y’s presentation and the most appropriate type of school placement.
18. The Council contacted Miss X on 2 September 2022 to ask for her preferences for school placements. On 7 September the Council was told by the midlands council that transferred Y’s plan that his EHC plan had not been reviewed since 2021.
19. Because Y had attended a mainstream school in the midlands, the Council consulted two mainstream schools. School A responded on 20 September. School B responded on 23 September. Both considered they could not meet his needs and the schools would not be able to accommodate him. In late September the Council consulted a third mainstream school, School C. It did not respond to the consultation.
20. The Council told us it sent a letter of intent to name School C on 1 November. The Council did not indicate that it gave the school, or Miss X 15 days to consider the proposal to amend the EHC plan and name School C. The Council issued a revised EHC plan naming School C. The ‘date of issue’ field is blank. However, the footer of the EHC plan is dated 1 November 2022.
21. The Council says it did not receive a response to a consultation from School C.
22. On 7 November, following a visit to School C, Y’s parents and School C’s Special Educational Needs Co-ordinator (SENCO) both agreed that School C could not meet Y’s needs.
23. The Council later stated, ‘following the responses received to the consultation and the lack of engagement from the named school (School C)…” that it would consult schools. It agreed to consult two further schools which Miss X proposed. Unfortunately, neither considered they could meet Y’s needs. In mid-December Miss X asked the Council to consult four more schools. Two of the schools they requested were independent schools (Schools D and E). School D is not on the Secretary of State’s list of approved independent schools. School E is on this list.
24. The Council told us the social and communication difficulties Y had did not fit the profile of students at School D. It did not consult this school. However, Miss X had visited School D with Y. She sent an email to the Council on 6 January 2023 setting out various reasons why the school would be ideally suited to Y’s needs. These included small classes, the layout of the site and places for calming down and the school being willing to adjust times so Y could avoid the busiest times. She stated the SENCO at the school confirmed the school was willing to be consulted as soon as possible and at present the school had places.
25. At the start of January 2023, the Council consulted School E and another of the four schools that Miss X named. The Council consulted the third of the four schools Miss X proposed in February, along with two further schools.
26. The Council told Miss X that an SEN panel would have to agree a consultation with School D. On 31 January, the Council told Miss X that the SEN panel had refused the request for a consultation with School D. This was because it was not a special school and did not have knowledge and expertise of ASD that it has been highlighted that Y needed.
27. None of the schools the council consulted agreed they could meet Y’s needs.
28. On 7 March the council said it would ask panel to reconsider whether to allow consultation at School D.
29. On 22 March Miss X chased the council for an update. They noted they had paid for private tuition for Y in the short term because they were concerned about the standard of tuition received previously, but they could not continue and needed a school place.
30. In April, the Council stated it had agreed, following the non-engagement of School C (named in an EHC plan in November 2022), it had continued to make consultations. However, the Council stated the request to consult School D was declined. It stated, prior to Y’s move to Bromley he was educated in mainstream settings. The Council stated, there were some inconsistencies around the type of educational placement that would be most appropriate for Y’s needs. This had been complicated by the in the absence of annual review paperwork following the family’s move to the midlands. To ensure the EHC plan accurately reflected Y’s needs, the Council proposed a reassessment of needs. It stated, in the meantime a final EHC plan naming a type of provision would be issued. This would be a mainstream secondary school.

Education Provision

31. In late September, while the Council was consulting schools to find Y a placement, it arranged home tuition. This was 8 hours over three days.
32. During this time Miss X told us Y had two tutors and there were issues with both. On 13 October, Miss X told the Council that Y’s relationship with his first tutor had broken down. Miss X stated the tutor did not seem sufficiently skilled to teach children with Special Educational Needs. For example, she forcefully demanded that Y look at her when she spoke which was an issue for Y, given his Autism. She requested a change of tutor.
33. Miss X told us Y’s second tutor was only able to teach to primary school level.
34. On 12 January 2023 Miss X told the Council they were concerned that Y had only had 8 weeks of primary school level tuition, and this was inadequate. They were concerned that Y may struggle to slot back into education if the situation continued. They asked for an increase in hours of tuition on 13 January. They stated with just 8 hours tuition, Y was falling behind his peers.
35. Miss X complained about the failure to find a school place. She also complained that Y had not received a suitable education in the meantime., She stated Y had only received 8 hrs tuition per week and this did not include the whole curriculum. She complained the education Y received was only at primary school level, whereas Y needed a secondary education.
36. From 21 February 2023 the Council increased tuition to 15 hours per week.
37. From mid-March 2023 until early May Miss X made arrangements for private tuition for Y. This lasts for 6 weeks. The Council declined to meet the cost of this provision, but stated it would provide tuition for Y at home.
38. In May, tuition provided by the Council re-started. This began with 2.5 hrs per week, rising to 8 hours week.
39. The Council told us that to decide what education to provide to Y it took account of Y’s EHC plan, and the advice received. It also communicated with Y’s previous school and Y’s parents. The Council considered it had provided a suitable education for Y while a place was being found via tutoring to meet his needs. For the period September to November 2022 this was 8 hours per week. The Council stated the tutors provided were experienced in teaching children with SEN. The feedback received form the tutors was that, while Y was bright, there were large gaps in his learning, and he could not manage learning for more than 2 hour periods, which was the original plan. The Council considered the level of tutoring was suitable for Y’s individual needs and level of SEN given feedback from his tutors.

What should have happened?

Y’s EHC Plan & School Place

40. The SEN Code specifies what should happen when someone moves to a new council area. When Y moved to Bromley, his EHC plan should have been reviewed within 3 months (or 12 months of the last review). On 7 September 2022, the Council were made aware by Y’s transferring local authority in the midlands that there had been no review of Y’s EHC plan since 2021. As the EHC plan had not been reviewed within 12 months, the Council should have arranged to review Y’s EHC plan within 3 months of his move to Bromley.
41. Y moved to the area on 7 July 2022, so his EHC plan should have been reviewed by 7 October 2022. The failure to carry out a review by this date is a breach of the SEN Code and it is fault by the Council. This caused injustice to Miss X and to Y, because it became apparent when looking for school places that a reassessment was needed to clarify Y’s needs. Had a review been held within the timescale set out by the SEN Code, any clarity that was needed could have been obtained sooner and this may have sped up the process of establishing the most appropriate type of school that Y needs.
42. Based on what the Council told us it appears an EHC plan was issued on 1 November 2022 naming a school (School D) without giving the required notice to either the school or Miss X. This is also a breach of the SEN Code and it is fault by the Council.
43. Although I note Miss X’s complaint also included a failure to consult an independent school that she wished to consider, because Miss X had the right to appeal against the school named in the November 2022 EHC plan, I cannot go on to consider the actions the Council took to find a school place after this date. This is because any disagreement about placements once the EHC plan was issued and named a school would be a matter for a Tribunal.

Provision of Education while Y was out of school

44. Section 19 of the Education Act says that councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, The provision generally should be full-time unless it is not in the child’s interests.
45. I recognise Mis X’s concerns about the level and quantity of tuition put in place for Y while a school place was being sought. However, an EHC plan was issued in November 2022 which named a school for Y to attend. This gave Miss X a right of appeal to challenge the suitability of the named school. Because Miss X had the ability to appeal against the content of Y’s EHC plan and the suitability of the school named in November 2022 we cannot investigate Miss X’s concerns about the suitability of Y’s education after that date. This is because a school had been named and the issue of what education Y received after this date is ‘inextricably linked’ to Miss X’s right to appeal against the suitability of the school. However, I have considered the situation with Y’s provision up to November 2022.
46. I found that, alongside the delay in reviewing Y’s EHC plan, there was also some delay in putting alternative provision in place. As at 7 July the Council knew Y was in its area and that attending the midlands school named in his EHC plan would be impractical. The Council had a duty to put an education in place within 15 days. This would have been around the time that the school term ended. So, Y’s education should have begun at the start of the Autumn term on 2 September. It took until late September for tuition to begin. The delay of around 3 weeks in the start of the provision was fault.
47. I recognise Miss X was concerned that the first two tutors were not property equipped to teach Y, however, the Council told us the staff were experienced in teaching children with SEN. The law says that suitable education means an education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. It must be full-time unless this would not be in the child’s best interests. The law does not define full-time education but children should have provision which is equivalent to the education they would receive in school. Statutory guidance (‘Ensuring a good education for children who cannot attend school because of health needs’) states that if a child receives one-to-one tuition, for example, the hours of face-to-face provision could be fewer than usual school hours would dictate. This is because the provision is more concentrated. The Council stated feedback from the tutors was that there were gaps in Y’s knowledge and primary school learning was appropriate.
48. Often, EHC plans detail support that should be provided by teachers and others across the school day and in the school environment. This means that it is not always possible to replicate the provision when a child is not in the school environment that was envisaged when writing the plan.
49. On balance, I consider the Council’s professional judgement that the level of education and hours of tuition provided between September and November 2022 were suitable for Y was one it was entitled to take at that time. I note it made changes with agreement from Miss X following her concerns. I do not consider the level and quantity of the work provided represented a failure to provide a suitable education, so I do not find this was fault.
50. I note Miss X did need to chase for a progress update on occasions. The Council acknowledged there was a delay providing a named caseworker and some difficulties in Miss X being able to reach the EHC plan co-ordinator. It apologised for this in response to Miss X’s complaint.

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Agreed action

51. Within four weeks of my final decision the Council agreed to:
52. Send a written apology to Miss X for the failure to review Y’s Education and Health Care plan within 3 months of their move to Bromley, the initial delay in putting alternative education in place and the failure to allow the required comments prior to issuing the EHC plan in November 2022. The apology should comply with our guidance on making apologies.
53. To recognise the avoidable distress and uncertainty caused by the fault we identified, the Council agreed to pay Miss X £300.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. There was fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman