Summary: Mrs X complained that the Council failed to deal properly with her son’s Education, Health and Care (EHC) Plan from when she moved into the area, resulting in loss of education. We have found that the Council was at fault in delaying reviewing the EHC Plan and failing to provide education and support. The Council has agreed a suitable remedy, including a payment for the loss of education.

The complaint

1. Mrs X complained that the Council failed to deal properly with her son’s Education, Health and Care (EHC) Plan from when she moved into the area in March 2020. She says the Council:
1. delayed in dealing with the transfer of the EHC Plan from the previous council;
2. failed to provide education or special educational needs support under the EHC Plan from March to July 2020;
3. delayed in carrying out the Annual Review of the EHC Plan and in issuing an amended final Plan after the Review; and
4. failed to put in place all the support under the EHC Plan from September 2020 to the end of the 2020-2021 school year.
2. As a result she says her son has missed out on education and support he should have received.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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. Where someone has appealed we cannot investigate the matter under appeal. (Local Government Act 1974, section 26(6)(a), 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 SEND Tribunal in this statement.

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How I considered this complaint

7. I discussed the complaint with Mrs X and considered the information she provided. I considered the complaint correspondence provided by the Council. I considered relevant law and guidance on education for pupils with special educational needs. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. 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.

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What I found

Education, Health and Care Plans

9. 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.

10. Parents have a right of appeal to the SEND Tribunal about the special education provision or the placement named in the EHC Plan.
11. Councils have a duty to ensure the special educational provision set out in an EHC Plan is arranged. (Children and Families Act 2014 section 42)
12. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out EHC assessments and producing EHC Plans. It explains what should happen when a child moves into a council’s area.
• The old authority must transfer the EHC Plan to the new authority on the day of the move, or within 15 working days of becoming aware of the move.
• Once the EHC Plan is transferred, the new authority becomes responsible for maintaining the Plan and for securing the special educational provision specified in it.
• Where attending the placement named in the transferred EHC Plan would be impractical, the new authority must place the child temporarily at another appropriate placement until the EHC Plan is formally amended.
• On transfer the new authority may bring forward the arrangements for review of the Plan and may conduct a new EHC needs assessment regardless of when the previous one took place.
• Within six weeks of the date of transfer the new authority must tell the parents when it will review the Plan and whether it proposes to do a needs assessment.
• The new authority must review the Plan within either 12 months of the previous Plan being reviewed or issued, or three months of being transferred, whichever is the later.

Action following a review

13. The council must write to the child’s parent or the young person within four weeks of the review meeting to say whether it proposes to keep the EHC Plan as it is, amend it or end it.
14. If the Plan needs to be amended the council should start the process of amending it without delay. It must:
• send the child’s parent or the young person a copy of the EHC Plan with details of the proposed amendments and any evidence it has supporting the amendments;
• tell them of their right to ask for a particular school or other placement to be named in the Plan and advise where they can find information about placements available; and
• give the parent or young person at least 15 days to make representations on the proposed changes or request a particular school.
15. If the council decides to amend the EHC Plan following the representations it must issue the final amended EHC Plan within eight weeks of the original amendment notice. It must tell the parent or young person about their right of appeal.

Consulting schools

16. If a parent asks for a particular placement to be named in their child’s EHC Plan the council must consult the school concerned and consider its comments very carefully before deciding whether to name it in the child’s EHC Plan.

Impact of the COVID-19 pandemic

17. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published ‘Good Administrative Practice during the response to Covid-19’.
18. The Secretary of State issued a notice under the Coronavirus Act 2020 to give councils more flexibility in dealing with EHC Plans and provision. It temporarily changed councils’ absolute duty to ‘secure’ the education provision in an EHC Plan to one of using ‘reasonable endeavours’ to do so. This change applied from 1 May to 31 July 2020. At the end of this period, councils’ usual duties resumed.
19. The Government also introduced temporary regulations, in force up to 25 September 2020, which allowed for the deadlines for completing EHC needs assessments, carrying out reviews and issuing EHC Plans to be relaxed. This applied where it was ‘not reasonably practicable’ or it was impractical to complete the actions within the usual timescale required, for a reason relating to COVID-19. The council had to complete the action ‘as soon as reasonably practicable’.

What happened

20. Mrs X’s son, K, now aged ten, has special educational needs. K has an EHC Plan and was attending a specialist school in another council area, ‘Council 1’, until March 2020 when the family moved to Suffolk. The school catered for pupils with complex learning, medical and behavioural needs who benefit from a multisensory approach.
21. His last EHC Plan before moving was issued in November 2019 following a review meeting in October 2019. It included the following provision:
• a small class with a great deal of 1:1 support throughout the day;
• a Speech and Language Therapy (SaLT) assessment every year to assess and review K’s communication needs;
• SaLT therapist to provide training and resources for school staff to meet daily communication needs ;
• staff to follow guidance provided by a dietician and/or specialist SaLT; and
• school to seek support from Occupational Therapy (OT) for an assessment and advice around sensory needs.
22. Mrs X has provided a copy of an email sent from Council 1 to Suffolk County Council’s SEN department on 27 February 2020 headed ‘inward transfer’. The email:
• gave K’s name and date of birth and referred to ‘attached documentation’;
• gave the date of the family’s move to the area as 6 March 2020;
• gave a temporary address for them and the permanent address they hoped to move to, both within the Council’s area;
• explained K was currently attending a special school and Mrs X would like this to continue; and
• said Mrs X had identified another school, School 1, a specialist school in the Council’s area which she felt would be suitable.
23. The letter attached to the email asked the Council to complete and return the attached form confirming receipt of the information. It also asked the Council to confirm it accepted financial responsibility for K’s EHC Plan.
24. Mrs X says she called the Council on 10 March to check if it had received the transfer information and it confirmed it had. She says the officer she spoke to told her the Council would not place K in a specialist school. However he confirmed he had not read the EHC Plan yet but would do so and call her back.
25. Mrs X says she did not receive a call back despite chasing up the Council.
26. The Council says on 27 March its Children Missing Education team received a notice that K was not in school. It says it received the transfer paperwork from Council 1 on 30 March.
27. Mrs X says after sending an email to the Council she discussed possible placements with it in early April. She says the Council said it would consult two specialist schools, Schools 2 and 3.
28. After Mrs X asked for an update the Council told her it considered School 2 could meet K’s needs and the matter would be decided at a panel meeting in mid-May. Mrs X queried why the Council had not consulted School 3.
29. The Council confirms that the Specialist Admissions Panel considered the case on 22 May and decided K should be offered a place at School 2.
30. The same day Mrs X asked the Council to consult the specialist school she had originally been interested in, School 1. She says the Council said School 1 was not suitable as K was working at too high a level.
31. The Council consulted School 3 in June but the School said it did not consider it could meet K’s needs.
32. Mrs X received a formal offer of a place for K at School 2 in mid-June to start in July. The placement did not start until September 2020. The Council says this was because of concerns School 2 had about arranging K’s transition during the COVID-19 pandemic.
33. Mrs X says School 2 told her it first received a copy of K’s EHC Plan in September 2020. She says School 2 told her it did not consider it was a suitable placement as it could not provide all the support in K’s EHC Plan.
34. Mrs X also says she started contacting School 2 from October 2020 about the Annual Review, as it was now 12 months since the previous one. She says the School contacted the Council.
35. In January 2021 Mrs X made a complaint to the Council. She complained that:
• the Council had not contacted her within six weeks of the transfer of the EHC Plan to its area to give her a date for a review or tell her whether there would be a new EHC assessment;
• it had not yet carried out a review; and
• K had not received some of the support set out in his EHC Plan and had not had his annual SaLT assessment as required.
36. The Council replied at the end of January. It said when she moved to the area she had contacted the Council by email. It had then contacted Council 1 and received the EHC Plan on 30 March. It said it had secured a placement for K at School 2 and consulted School 3 in June as she requested, but School 3 said it could not meet K’s needs.
37. The Council explained that where it receives an EHC Plan from another authority it writes to the family and the placement to ask the placement to carry out an Annual Review ‘as soon as reasonable’ to inform the new EHC Plan. It said it appeared “this process was interrupted by the current Covid restrictions”. It apologised for the delay and said it was working with the school to identify review dates for all students. It said it would treat K as a priority and draft an amended EHC Plan and then look at placements for the next academic year.
38. The Annual Review meeting took place on 1 February 2021. Mrs X expressed her view that School 2 was not a suitable placement as it could not meet all K’s sensory and therapeutic needs. She felt the EHC Plan needed amending as it had been written for his previous specialist school where much of the support K needed was already integrated into the curriculum. This did not apply at School 2. She said K’s sleep pattern and his mental health had suffered. School 2 agreed it was not a suitable placement for K and the EHC Plan was no longer appropriate. The review report recommended re-writing the EHC Plan, carrying out a sensory assessment and an up-to-date SaLT assessment, and a change of placement. It recommended that the Council respond to the proposal to amend the EHC Plan within two weeks and write the Plan in a further six weeks.
39. On 4 February the Council wrote to Mrs X to say it intended to amend the EHC Plan.
40. In mid-February Mrs X asked the Council to take her complaint to stage 2. She disputed the Council’s account of events, saying she had first contacted the Council on 27 February. She described her attempts to contact the Council to raise concerns about the suitability of School 2 and ask for Schools 1 and 3 to be consulted. She said the Council had not met the review timescales and was now using out of date COVID-19-related legislation to justify the delay. She also said School 2 had not seen K’s EHC Plan until September 2020, which is why it could not meet K’s needs.
41. Later she added further points to her complaint. She complained that the stage 1 response was inadequate. She said the consultation process with School 2 and School 3 had not been done properly resulting in K being in inappropriate provision. She asked why K had had no school placement for six months and why the provision in his EHC Plan was not being delivered. She said the SaLT assessment was now five months overdue.
42. The Council gave its stage 2 response at the end of May, making the following points.
• It accepted there was delay in transferring the EHC Plan. It said following the Specialist Admissions Panel in May 2020 Mrs X had received a formal offer of a place in June. However, the Council could not progress this until September because of concerns about K making the transition to a new placement during the pandemic.
• It accepted there was delay in starting the process of review of the EHC Plan.
• It apologised that the transition from Council 1 to Suffolk “did not take place in a timely manner” and agreed K was “entitled to attend school and have alternative provision sooner”.
• It said School 2 had been able to see the relevant documents online and did not agree it was an unsuitable placement until after the Annual Review meeting. But it recognised that the delays had “impacted on securing the correct provision for [K] and it is apparent that provision as defined within [K's] EHCP was not being met".
• It addressed the alleged inadequate stage 1 response and the dispute with the Council’s chronology. It said it had no records of the calls Mrs X said she made and the conversations she had. But it said it had no reason to disbelieve her timeline.
• It apologised for the “considerable lack of communication at the beginning of the process". Mrs X should have been informed of what to expect, especially given the pandemic conditions. This could have alleviated some of her concerns.
43. As a remedy the Council offered Mrs X £600 to recognise what it said was the three months (April-June inclusive) that K was out of education. It also offered £100 for her time and trouble in pursuing her complaint.
44. It said it would provide feedback to staff about logging communications with families, and remind them of the process for dealing with transfers between councils.
45. The Council referred the request for a change of placement to the Specialist Education Panel in late May 2021. The Panel agreed the Council should consult School 1 (Mrs X’s preferred school), School 3, and another school, School 4.
46. The Council started consulting the schools in May. The SaLT assessment took place in June.
47. The Council issued a final amended EHC Plan on 10 June 2021. It named School 2, “transferring to specialist in September 2021”. The EHC Plan contained some of the same provision as the previous one, such as the requirement for an annual SaLT assessment and guidance to staff. There was also additional support specified including:
• observations from the SaLT therapist twice each half term;
• 1:1 support for 50% of the school day;
• a key worker;
• a therapeutic approach to supporting K with psychologist-led training;
• staff working with K to have specialist knowledge of supporting children with his social communication and social ,emotional and health needs; and
• a “highly differentiated curriculum”.
48. K remained at School 2 until late June when Mrs X withdrew him because of an incident at school. School 2 closed down in July 2021.
49. Mrs X appealed to the SEND Tribunal in August about the lack of named school placement. The Council consulted schools, and offered K alternative educational provision from September 2021 as he did not have another placement. Mrs X made a further complaint to the Council about lack of support for K as set out in his EHC Plan and the lack of placement.

Analysis – was there fault causing injustice?

50. I am considering events from when the Council was notified Mrs X’s family was moving into its area until the end of term in July 2021. I have ended my investigation at that point because Mrs X then appealed to the Tribunal about the provision and the placement, and made a further complaint about these issues.

Complaint a) - Delay in dealing with the transfer of the EHC Plan from the previous council

51. The Council has accepted delay in dealing with the transfer process. It did not contact Mrs X within six weeks to say what action it was going to take. The evidence Mrs X has provided shows the delay was longer than the Council has acknowledged. Council 1 first wrote to the Council with details of K’s move on 27 February, not 30 March as the Council states. Although the temporary rules allowed for flexibility in the timescales, the Council has not said this failing was related to pandemic conditions. In any event Mrs X has demonstrated the Council received the information a month before lockdown and over two months before the temporary legislation came in. So it had time to issue a notice to her within six weeks before this.
52. The Council has apologised for the lack of communication and offered Mrs X £100 to recognise her time and trouble in pursuing her complaint. I do not consider this sufficient because it does not take account of the full impact of the delay. Mrs X also experienced anxiety and distress and K missed out on education, as set out below.

Complaint b) Failure to provide education or special educational needs support under the EHC Plan from March to July 2020

53. The delay in taking action after receiving the ‘transfer in’ documents impacted on the education and support provided to K. K had no placement and no education or special educational support at all from March to July 2020. Mrs X says in March a Council officer told her the Council would not place K in a specialist school but confessed to not having read the EHC Plan at that point. The Council has no records of the conversation but says it has no reason to doubt Mrs X’s timeline. Also, it is the case that the Council did not consult School 1 when she asked it to, either at the outset or in May when it started consulting other schools. Mrs X said the Council told her it did not consult School 1 because it felt it was not suitable. The failure to consult her preferred school is fault. The Council did not do so until May 2021.
54. The Council had a duty to offer an appropriate temporary placement following K’s move into the area until it completed a review of his EHC Plan. It did not consult any schools until May and June 2020. I accept that once it did consult and School 2 offered a place, it was not practical for K to start the placement until September 2020 because of the difficulty in making transition arrangements during pandemic restrictions. But if the Council had consulted earlier it would have had longer to make arrangements. Also the Council made no attempt to offer any alternative out of school provision or any support set out in the EHC Plan.
55. The Council had a duty to make reasonable endeavours to put the EHC Plan provision in place during this period. As I have seen no evidence it made any attempt to do so I find the Council was at fault.
56. The Council has accepted there was a lack of provision for three months and offered £200 per month to recognise this. But I do not consider the period or the amount offered sufficient as, taking account of school holidays, K was without any education or support at all for around four months.

Complaint c) - Delay in carrying out the Annual Review of the EHC Plan and in issuing an amended final Plan after the Review

57. I do not know when the Council would have decided it needed to carry out a review of K’s EHC Plan if it had dealt with the transfer in process properly. But it should have held a review by October 2020 at the latest as this was 12 months since the previous review. By this time the normal timescales for completing a review had returned. The Council did not carry out a review until February 2021 after Mrs X had made a formal complaint. So the review was at least four months late. When the Annual Review meeting took place, School 2 agreed it was not suitable and could not deliver all the provision in K’s EHC Plan.
58. The review resulted in an amended final EHC Plan being issued in June 2021. This was also late and delayed Mrs X’s right of appeal. If the review meeting had taken place by October 2020 at the latest, there would have been an agreement to amend the EHC Plan earlier. To meet the required timescales the Council would have had to issue a final EHC Plan around January 2021. The new Plan in June provided for more detailed and targeted support. So K missed out on this extra support because of the delay in completing the review.
59. Until the outcome of Mrs K’s appeal is known I cannot say whether the delay meant K missed out on any other provision or delayed a move to a different placement.

Complaint d) Failure to put in place all the support under the EHC Plan from September 2020 to the end of the 2020-2021 school year

60. School 2 acknowledged it could not provide all the support for K required under his EHC Plan. This applied from September 2020. Then from January 2021 to June 2021, the delay in issuing the final amended EHC Plan resulted in a failure to put increased provision in place, as discussed above. So the Council was at fault in failing to deliver all K’s support from September 2020 until June 2021 when Mrs X removed him from school.

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Agreed action

61. The Council has already apologised to Mrs X for its failings and offered her some financial remedy. I recommended an additional remedy based on the Ombudsman’s guidelines. Where fault has resulted in a loss of educational provision, the Ombudsman normally recommends a remedy payment of between £200 and £600 per month to acknowledge the impact of that loss. The recommended figure takes account of factors such as the child’s special educational needs and whether the child has received any educational provision during the period.
62. The Council has now agreed to offer the following payments:
• £100 to recognise Mrs X’s time and trouble in pursuing her complaint, as already offered;
• £400 to recognise the anxiety and distress to Mrs X caused by the delay in dealing with the transfer of K’s EHC Plan, the poor communication and delayed right of appeal;
• £2,400 to recognise the impact of the lack of any education or support for K for four months between March and July 2020, at the rate of £600 per month; and
• £1,600 to recognise that K did not receive the full support in his EHC Plan from September 2020 to June 2021. This represents eight months (taking account of school holidays) at the rate of £200 per month.
63. The payments for loss of education should be used for the benefit of K’s education or to support his special needs.
64. The Council has already agreed to remind staff about recording communication with families and about the process for dealing with transfers between local authorities. The Council will provide evidence to the Ombudsman that it has carried out these actions.
65. The Council has also agreed to remind relevant staff about the duty to consult the schools that parents request and not to make their own decision that a school is not suitable without consulting.
66. The Council should take all these actions within one month of the final decision on the complaint.

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Final decision

67. I have found that the Council was at fault in failing to deal with K’s EHC Plan properly. The Council has agreed a suitable remedy for the injustice caused and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman