The Ombudsman's final decision:
Summary: Mrs B complains the Council delayed identifying a school place for her son, failed to arrange transport for his first day at school, delayed transferring her son’s education, health and care plan and delayed considering her complaint. There is no fault in how the Council arranged the school place. However, the Council failed to consider alternative provision until a place was available, failed to arrange transport for the first day at school, delayed putting in place provision and delayed considering the complaint. This led to Mrs B having to go to time and trouble to pursue her complaint, led to her having to take a day off work and left her uncertain about whether her son could have received additional support from May 2018. An apology, payment to Mrs B, an amount to reflect her son’s lost provision, review of the transport procedure and reminder to officers is satisfactory remedy for the injustice caused.
- The complainant, whom I shall refer to as Mrs B, complained:
- delayed identifying a school place for her son;
- failed to arrange transport for her son’s first full day at school;
- delayed transferring her son’s education, health and care plan; and
- delayed considering her complaint.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- As part of the investigation, I have:
- considered the complaint and Mrs B's comments;
- made enquiries of the Council and considered the comments and documents the Council provided; and
- gave Mrs B and the Council an opportunity to comment on my draft decision.
What I found
- Mrs B works in the Armed Forces and has a young son who has an education, health and care plan. In November 2017 Mrs B contacted the Council to say her family would be moving into the Council’s area in April 2018. Mrs B said her son had an education, health and care plan and needed a special school. Mrs B asked for details about how to identify a suitable school. The Council told Mrs B it needed proof of address and the date of the move. The Council told Mrs B she could express a preference for a specific school and the Council would consult that school and any other suitable schools.
- On 6 December 2017 Mrs B contacted the Council to tell it her family was moving in April 2018 and her son required a special school. The officer Mrs B spoke to told her all special school places were full and the placement could therefore take time.
- On 31 January 2018 the local authority for the area in which Mrs B was living at that point provided the Council with a link to Mrs B’s son’s education, health and care plan.
- On 6 February the Council consulted a school for children with moderate learning difficulties which it considered the nearest suitable school for Mrs B’s son based on his education, health and care plan. The Council told Mrs B about that on 7 February and said the school had 15 days to respond.
- Mrs B chased the Council on 20 February. The Council told Mrs B it had not received a response from the school.
- On 21 February the school told the Council it did not have a place and could not offer a placement. The Council told Mrs B about that on 22 February. The Council said it would look at offering support in the interim until it found a place for September 2018.
- Mrs B chased the Council on 28 February. On 1 March the Council told Mrs B it was in discussions with the school. The Council said a meeting was planned for May to discuss placement of various children at the school, including Mrs B’s son.
- On 18 March the Council contacted the NHS for information about how to access nappies given Mrs B’s son was not in school. The NHS asked for details of the child which the Council provided on 23 March.
- When Mrs B contacted the Council on 19 March it told her it had secured a place for her son from September. The Council told Mrs B it was trying to arrange an earlier start date.
- On 27 March the school told the Council it hoped to take Mrs B’s son in June. The school also gave some information about possible outreach arrangements.
- On 30 March the NHS told the Council it had contacted Mrs B and arranged to support his continence needs. The NHS told the Council it would also arrange a referral to speech and language therapy.
- On 18 April Mrs B raised concerns about the financial impact not having a full-time placement in school would have on the family if a placement was not immediately available when they moved. The Council told Mrs B it hoped to begin an interim arrangement in June with a full-time placement in September. The Council referred to the possibility of home tuition. The Council contacted Mrs B son’s current school to request a referral for home tuition on 25 April.
- On 25 April Mrs B gave the Council her new address and expected moving date of 8 May.
- On 1 May the Children’s Education Advisory Service (CEAS), which was representing Mrs B, told the Council Mrs B was prepared for her son to receive an alternative setting until September when the school had room for him as long as he was in full-time education.
- Mrs B and her family moved into the Council’s area on 8 May. Mrs B asked for an update on 9 May.
- On 15 May CEAS contacted the Council to complain about the delay identifying a school placement. The Council provided details of its actions to date and the plan. CEAS reminded the Council a school must admit Mrs B’s son if the Council named the school on the education, health and care plan.
- On 18 May the Council contacted the designated nurse and designated clinical officer to obtain details of the process for nappies.
- On 23 May the Council confirmed the school had arranged for transition to begin week commencing 18 June for three mornings a week. The Council told Mrs B the health team would arrange a toilet skills assessment and then provide any products needed. The health team confirmed it could coordinate that regardless of whether Mrs B’s son was attending school.
- On 24 May the Council made a speech and language therapy referral to School’s Choice.
- On 4 June the Council asked the previous local authority for a copy of the education, health and care plan review from March 2018 as the plan it had was dated 22 August 2017. On 11 June the previous local authority told the Council it had not completed a review.
- On 15 June the Council issued a draft education, health and care plan.
- On 19 June the Council completed a request for school transport for Mrs B’s son.
- Mrs B’s son attended the school for half days on 19, 21, 25 and 27 June as part of his transition.
- The Council contacted the transport service on 29 June to confirm the arrangements for transport were in place. The transport service said the request had slipped through the net and it could not arrange transport to start until 3 July.
- On 2 July Mrs B’s son began his placement at school. As I understand it Mrs B’s son received speech and language therapy from September 2018.
- Mrs B put in a complaint on 2 May. The Council acknowledged that on 10 May and told Mrs B it would provide a response by 31 May. The Council provided a response on 14 June. Mrs B told the Council she was not happy with its response on 21 June. The Council responded on 23 August and apologised for the delay.
SEN Code of practice
- Paragraph 9.157 of the SEN code of practice (the code) says 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.
- Paragraph 9.158 of the code says the old authority should also transfer any opinion they have received under the Disabled Persons (Services, Consultation and Representation) Act 1986 that the child or young person is disabled. Upon the transfer of the EHC plan, the new authority becomes responsible for maintaining the plan and for securing the special educational provision specified in it.
- Paragraph 9.159 of the code says 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 – for example, where the distance between the child or young person’s new home and the educational institution would be too great – until the EHC plan is formally amended.
- Paragraph 10.55 of the code refers to eliminating or mitigating some of the potential disadvantages faced by service families. It says all those with statutory responsibilities towards service children with SEN should ensure the impact of their policies, administrative processes and patterns of provision do not disadvantage such children because of their service-related lifestyle.
- Paragraph 10.56 of the code says, in respect of service children, schools and other education providers should ensure mechanisms are in place to enable effective and timely receipt and dispatch of all relevant records for service children with SEN moving between schools in the UK and overseas, to enable effective planning, ideally in advance of the child’s arrival in school.
- Paragraph 10.57 of the code says local authorities should, when children move home across local authority boundaries, transfer the EHC plan from the ‘old’ local authority to the ‘new’ local authority within 15 days from when they first become aware of the move. The new local authority will have to tell the parents within 6 weeks of the transfer of the EHC plan whether the authority will bring forward the annual review of the plan and whether it intends to reassess the child. From the transfer of the plan the new local authority must arrange the special educational provision set out in it, although a child may have to be placed in a school other than the one named on the plan if the distance of the move makes it impractical to send the child to the named school.
- Paragraph 10.57 goes on to say local authorities must work with each other and CEAS so that special educational provision can be made as soon as a child arrives in the new authority. Anticipated moves should not be used to delay the provision of appropriate support for children or the carrying out of needs assessments.
- Mrs B says the Council delayed identifying a school place for her son. Mrs B says due to that delay she had to postpone her move. Mrs B says even when the move took place her son still did not have any education for six weeks. Mrs B says due to that her husband could not work as the family did not have any childcare.
- The evidence I have seen satisfies me the Council acted quickly when it became aware of Mrs B’s impending move. I say that because I note the Council began identifying and then consulting suitable schools in February 2018. I recognise Mrs B’s son did not start school until July 2018. However, the evidence I have seen satisfies me that was because the Council was unable to identify a place at a school for children with moderate learning difficulties as all places were full at the point at which it made its enquiries. I recognise that left Mrs B and her family in a difficult situation and I do not doubt the considerable stress that caused. I am satisfied though the only reason Mrs B’s son was unable to start school until July 2018 was because there were no places available. I therefore could not say fault by the Council meant Mrs B’s son missed out on full-time schooling.
- I am concerned though the Council did not pursue alternative options such as home tuition on an interim basis until a school place became available. I am satisfied the Council considered that option because it obtained costings from the school. However, there is no evidence the Council discussed that option with Mrs B. Failure to do that is fault. It is likely it would have taken some time to set up the home tuition, which would not have been full-time. So, I could not say Mrs B’s son would not have experienced any period without provision. As that provision would likely have been at home and a parent would have needed to be present I also could not say any part time provision would have allowed Mrs B’s husband to work. Nevertheless, I am satisfied Mrs B is left not knowing whether her son could have received some provision between 8 May when they moved into the Council’s area and 19 June when her son began transition days.
- Mrs B says the Council failed to put in place transport for her son’s first day at school. Mrs B says this meant she had to take time out of work to take him to school herself. Having considered the documentary evidence I am satisfied the Council completed the referral for transport on 19 June. The form makes clear to arrange transport the team require five working days. Given Mrs B’s son did not start school until 2 July I am satisfied the form was completed within plenty of time for transport to start on 2 July. The evidence I have seen satisfies me the Council failed to put in place transport for 2 July. It appears this was because the referral slipped through the net. Failure to put in place transport for the first day of school is fault.
- Mrs B says the Council delayed transferring her son’s education, health and care plan. Mrs B refers to the SEN code of practice which I refer to in paragraph 37 of this statement. Mrs B says that paragraph makes clear when transferring an education, health and care plan for children of service families the transfer should take place within 15 days of when the Council first became aware of a move. Mrs B says because she told the Council about her impending move in December 2017 it should have transferred the education, health and care plan within 15 days, or at least within 15 days of when she contacted it in January 2018.
- However, the Council points to paragraph 9.157 of the code of practice, which I refer to in paragraph 32 of this statement. The Council says there is nothing in the code to suggest that paragraph does not also apply. The Council says this means if there is prewarning of the move the transfer of responsibility must occur on the day of the move or, if not warned, 15 days after the Council became aware. The Council says in this case it had warning of the transfer and therefore the education, health and care plan would transfer on the day of the move. The Council says transfer of responsibility for an education, health and care plan cannot take place until the actual move occurs. The Council says it would not be reasonable for councils to transfer responsibility before a move takes place. The Council accepts though it should plan for an expected move ahead of time, particularly for children transferring from a service family due to the greater disadvantages they can experience due to their service lifestyle. The Council says its responsibility is therefore to transfer data and prepare to put in place provision as soon as possible after the move occurs.
- There is a clear difference of opinion here about what the code of practice requires. In my view the paragraph Mrs B is relying on, referred to in paragraph 37 of this statement, is ambiguous. I also do not consider it would make sense to transfer the plan and responsibility for that plan before the child has moved. I consider the paragraph Mrs B is relying on is written envisaging the move has already taken place. I cannot see how the Council could have taken over responsibility for the plan within 15 days of notification of the impending move in either December 2017 or January 2018. That is because at that point Mrs B’s family were still living in another local authority’s area. I therefore do not criticise the Council for not transferring the plan until Mrs B moved in May 2018.
- However, I note paragraph 10.57 of the code, referred to in paragraph 38 of this statement, makes clear local authorities are expected to work with each other so special educational provision can be made as soon as a child arrives in the new authority. I therefore consider there is an expectation work to transfer the plan will be done before the child transfers. The expectation is special educational provision can then begin as soon as the child arrives in the new authority. In this case I am concerned although the Council knew of the impending move little seems to have been done to arrange provision until Mrs B’s son started the new school year in September 2018. Given the Council had been in regular communication with Mrs B since at least January 2018 and had received a copy of the education, health and care plan in February 2018 I would have expected the Council to make the necessary arrangements for the special educational needs provision to start as soon as Mrs B’s son started school in July 2018. Failure to do that is fault and led to Mrs B’s son missing out on some provision.
- The Council’s complaints procedure says complaints at stage one will be acknowledged within five working days and a response provided within 20 working days. In this case Mrs B put in a complaint on 2 May but did not receive an acknowledgement until 9 May. That is slightly outside the five working day target. That is fault. The Council should also have responded to the complaint within 20 working days and failed to do that because it did not respond until 14 June. Failure to meet the targets set in the Council’s complaints procedure is fault.
- The Council also delayed responding to the stage two complaint. Mrs B put in a complaint on 20 June and the Council did not respond until 23 August. The Council’s complaints procedure says responses at stage two should normally be completed within 25 working days, although 65 working days is the maximum for particularly complex cases. It does not seem to me Mrs B’s complaint fell within the particularly complex range. In any event, if the Council had been unable to meet its 25 day deadline I would have expected it to write to Mrs B to explain why and it failed to do that. Failure to adhere to the timescale set down in the Council’s complaints procedure is fault.
- Within one month of my decision the Council should:
- apologise to Mrs B for the faults identified in this statement;
- pay Mrs B £200 to reflect the time and trouble she had to go to pursuing her complaint and the fact she had to take a day off work to transport her son on his first full day at school;
- pay Mrs B £400, to be spent on her son, to reflect the failure to provide speech and language therapy until September 2018 and the failure to consider providing alternative education provision between May and June 2018;
- review the procedure for arranging school transport to ensure what happened in this case does not happen again; and
- remind those dealing with transfers of education, health and care plans of the need to ensure a seamless transfer for those students from service families.
- I have completed my investigation and uphold the complaint.
Investigator's decision on behalf of the Ombudsman