Summary: Mr B complains about the way the Council carried out its duty to secure his son, C, who has an Education Health Care Plan, a school place when they moved from another area. The delays caused C to be out of education for longer than he should have been and this affected his learning and mental health. This also caused Mr and Mrs B unnecessary distress. The Ombudsman finds fault with the Council and has agreed actions to remedy the injustice.

The complaint

1. Mr B’s son, C, has an Education Health Care (EHC) Plan. The family moved to Sheffield from another area in November 2018. Mr B says he notified Sheffield Council City prior to moving.
2. Mr B complains:
• Due to delays, caused by the Council’s handling of the transfer, his son was without education between November 2018 and February 2019.
• This has affected C’s education, mental health and wellbeing.
• His son also missed out on other services such as Speech and Language therapy, occupational therapy and mental health support because these are difficult to access when a child is not attending school.
• Both Mr and Mrs B suffered worry and distress during this period.

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What I have investigated

3. I have investigated the complaint as outlined above.

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The Ombudsman’s role and powers

4. 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’.
5. 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)
6. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
7. 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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How I considered this complaint

8. During my investigation I:
• Spoke to Mr B and considered the information he provided.
• Made enquiries with the Council and considered its response.
• Reviewed relevant guidance and policy.
9. Mr B and the Council had the opportunity to comment on my draft decision. I considered all comments received before reaching a final decision.

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What I found

Law, guidance and policy

10. Under section 19 of the Education Act 1996, if a child of compulsory school age (between 5 and 16 years old) cannot attend school for reasons of illness, exclusion from school or otherwise, the council must arrange to provide ‘suitable education’. This can either be at school or elsewhere.
11. Children with more complex needs might need an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to ensure special educational provision in an EHC plan is made available.
12. 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 or within 15 working days beginning with the day on which it did become aware.
13. The requirement for the child to attend the educational institution specified in the EHC Plan continues after the transfer. However, where attendance would be impractical, the new authority must temporarily place the child 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.

What happened

14. In October 2018 Mr B contacted the Council to say he would be moving to Sheffield in November 2018 and his son, C, had an EHC plan. Mr B confirmed this by email and provided:
• a copy of the EHC Plan;
• the name of C’s current school; and
• the Special Educational Needs (SEN) co-ordinator.
15. Mr B also asked the Council to tell him what other documents and information he needed to send.
16. The Council used the EHC Plan to send consultation letters to four primary schools. There was a delay receiving the consultation from Mr B’s preferred school. This took 38 days. Mr B says the response was only received after he contacted the school to chase it.
17. The consulted schools could not offer C a place.
18. In November 2018 Mr B and his family moved to Sheffield.
19. The Council contacted the previous authority at the beginning of December because it had not sent the EHC Plan. The information was sent to Sheffield before the EHC Panel hearing.
20. The case was heard at the EHC Panel in December. The Panel requested other documents and consultation with local mainstream schools. The panel wanted clarity on the placement C was accessing before he moved to Sheffield as the information suggested there was consideration of a move to specialist provision.
21. The Council carried out a further consultation with other primary schools. It also met with Mr B and discussed C’s needs in more detail. After this meeting an amendment was made to the EHC Plan and a second consultation was carried out. C was offered a place at the family’s preferred school. There was a delay sending the amended EHC Plan to the school and this caused a further delay in its response before the second panel meeting.
22. The case was heard at EHC Panel again in January 2019. Due to the delay (outlined at 21) the Panel were not aware of the offer made by the preferred school. It requested a further consultation, based on the amended EHC Plan.
23. The case was heard at EHC Panel again a week later and it agreed to the place at the preferred school. The Panel decision was shared with Mr B a week later, the delay was due to a ‘back log’ waiting to be ratified before it could be shared.
24. Mr B contacted the Council several times after the decision to find out when C could start school. He complained to the Council at the beginning of February 2019.
25. C started school in February 2019. He was out of school, without education, from 04/11/2018 to 11/02/2019.
26. Mr B was dissatisfied with the Council response and complained to the Ombudsman.

The Councils response

27. In response to this complaint the Council said:
• C’s EHC Plan was formally disclosed to the Council on 10/12/2018 but this should have been sent on 01/11/2018.
• The Council did not request any additional information from the parents but did contact the previous Local Authority to request all the information. Local Authorities should disclose the EHC Plan and Section K documents to the new local authority when they are notified that a family has moved. Section K documents are copies of all the advice and information obtained as part of the EHC needs assessment.
• The SEND Code of Practice gives schools 15 days to respond to consultations. In this case all provided a response prior to the 05/11/2018. There was short delay but the Council did not find fault with this.
• There was a four-week delay presenting the case to EHC Panel. The delay was a combination of other work pressures, the officer believing that the EHC Plan needed to be transferred to the Sheffield format prior to presentation and the officer seeking advice. It acknowledged it was not necessary for the officer to spend time transferring the EHC Plan to Sheffield format before the panel submission and this caused unnecessary delay.
• The Council identified training needs and apologised for the delay in getting the case to the EHC Panel. It does not believe this resulted in C missing education provision unnecessarily.
• The delay receiving the first consultation response from the preferred school was due to staffing issues at the School. The Council made efforts to chase the response from the School during this period.
• The panel submission only included the EHC Plan as the submission had already been collated by the time the section K documents were sent through. It accepts the section K documents were in the Council’s possession at the time of the first EHC Panel.
• The usual timescale for senior manager approval of the Panel decision is within one week. The final EHC Plan naming the school and a covering letter was sent to parents seven working days after the Panel. The Council stated it is then up to the school and parents to arrange transition for the child. The School worked with the family to arrange a start date.
• No consideration was given to alternative temporary education provision because the Council consulted with appropriate schools and took action in a timely manner. There was no anticipation that the process would take an extended period of time.
• The Council spoke to the Head of the School on the phone to raise the issue of additional support for C. Unfortunately, there is no formal record of this call and the Officer has now left the organisation. The Service confirms they will continue to work with the school on any gaps they feel need addressing and the Council will contact the School to ensure this is addressed as part of the annual review.
• It will offer to pay £400 for the four-week delay presenting the case to Panel and the impact of this on C and Mr B.

My findings

28. Mr B contacted the Council before the family moved to Sheffield. He provided C’s EHC Plan at the beginning of October and the Council sent out consultation letters to four schools based on this information. I do not find fault with the way the Council carried out the first consultation. The letters were sent out within two weeks of Mr B sending the EHC Plan. There was a delay receiving one response but the Council says this was due to a staffing issue at the School. The Council says it made efforts to chase the response and I have no reason to doubt this information.
29. When the case was first heard by the EHC Panel in December 2018 all of the information, including the section K documents, was already available. The Panel could not make a decision and requested further information. This information had either not been requested or was in the Councils possession but was not presented to the Panel. This is fault and caused a further delay.
30. The Council did not send the amended plan to one of the schools during the second consultation period and this delayed the school’s response. This was key because it was the school that was eventually able to offer C a place. Due to this delay the offer of a place was not shared with the Panel at the second hearing and this resulted in a further delay. This is fault.
31. The Council says the week it took to inform Mr B of the Panel’s decision after the third panel hearing was within its usual timeframe. It also says following the decision it was up to the School to arrange a suitable start date. This response fails to recognise the delays in this case and the distress this was causing the family. I can see from the communication Mr B had with the Council at this stage he was becoming increasingly concerned about the time it was taking to get C into a suitable placement and frustrated with the delays.
32. The Council was aware the School had offered C a place on 17/01/2019. In the circumstances it should have made more effort to expedite the process. C had already been out of education since 01/11/2018, with no alternative provision in place.
33. After the first consultation it was clear that finding a place to meet C’s needs might be challenging. At this point the Council should have considered what alternative arrangements it could make to ensure it fulfilled its duty under section 19 of the Education Act 1996. The Council failed to consider this and C was without any education for three months. This is fault. Mr B says this had a significant impact on C’s progress, but also on his emotional wellbeing. The family noticed a serious decline in C’s mood while he was not in school.
34. Being out of school for this period also had an impact on C’s access to other support such as Speech and Language therapy, Mental Health services and Occupational Therapy. Mr B says he had difficulty accessing these services without school support.
35. In its communication with Mr B about his complaint the Council said it had not seen evidence of the impact on Mr and Mrs B’s life and mental health and therefore it did not consider compensation to be ‘necessary or appropriate’. I disagree with this. It is clear from the information I have seen that the family were becoming increasingly anxious and distressed during the time it took to allocate C a place at school. Mr B informed the Council of the impact the delay was having on C. It is also reasonable to appreciate the impact this would have on Mr and Mrs B.
36. The faults by the Council caused a longer delay than four weeks. If the correct information had been sought and taken to Panel within the two-week timeframe the Council suggested it would have been heard before December 2018. I believe the delay added approximately eight weeks to the process. Therefore, I recommended the amount the Council pays in recognition of the missed education is increased to £800. The Council has agreed to this.
37. I am not satisfied the Council has fulfilled its commitment to identify and address C’s additional support needs caused by the time he spent out of education. The Council response has not provided any evidence of this. This is fault and means the family can not be sure any gaps in C’s education will be filled. The Council has agreed to remedy this injustice.

Agreed action

38. Within four weeks of my final decision the Council agrees to:
• Pay Mr B £800 in recognition of C’s missed education caused by the delay securing C a school place. This also recognises the impact this had on C’s wellbeing, mental health and access to other support services.
• Pay Mr and Mrs B £200 for the distress and uncertainty they experienced due to the delays.
• Identify C’s additional support needs caused by the period he spent out of education. Work with the School, family and any other relevant professionals to create a plan to address these needs.

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Final decision

39. The Ombudsman finds fault with Council. This fault caused an injustice to the family and the Council has agreed actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman