Summary: Mrs B complained about failures by the Council to provide education and special educational provision for her son, C, when they moved into Northamptonshire in May 2018. We find the Council at fault for failing to provide education for C between May and July 2018, for failing to maintain his existing EHCP while it carried out a reassessment, for failing to give reasons for its decisions and for failing to consider the information Mrs B provided as part of the process. The Council has agreed to pay Mrs B £1200 for the educational benefit of C, £1800 towards the costs she incurred and £500 for her time and trouble in pursuing this matter.

The complaint

1. Mrs B complains that Northamptonshire County Council (the Council) in respect of her son C, failed to:
• provide education for him from 9 May 2018 when the family moved into the area;
• maintain his Education, Health and Care Plan [EHCP] which transferred from his old local authority when they moved;
• explain why it decided to carry out a reassessment of the EHCP;
• gather appropriate or complete professional advice before drafting the new EHCP; and
• ignored the professional reports provided by Mrs B.

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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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. A child with special educational needs may have an Education, Health and Care plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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.

6. We can consider the other sections of an EHCP. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
7. 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)

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How I considered this complaint

8. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. I have written to Mrs B and the Council with my draft decision and considered their comments.
9. 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

10. This statutory guidance states that:

In this Code of Practice, where the text uses the word ‘must’ it refers to a statutory requirement under primary legislation, regulations or case law.

11. It goes on to say that whenever a local authority is taking decision it must give consideration to what the Code says and cannot ignore it. Where the text uses the word ‘should’ it means that the guidance contained in this Code must be considered and that those who must have regard to it will be expected to explain any departure from it.

Transfers between local authorities

12. The Code says that where a child or young person moves to another local authority, the ‘old’ authority must transfer the EHCP to the ‘new’ authority on the day of the move unless the old authority did not have 15 working days’ notice of the move.
13. It goes on to say that upon the transfer of the EHCP, the new authority becomes responsible for maintaining the plan and for securing the special educational provision specified in it. The requirement for the child or young person to attend the educational institution specified in the EHCP 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 EHCP is formally amended.
14. The new authority may, on the transfer of the EHCP, bring forward the arrangements for the review of the plan, and may conduct a new EHC needs assessment regardless of when the previous EHCP needs assessment took place. Where the local authority proposes to amend an EHCP it should inform the parent that they may request a meeting with the local authority to discuss the proposed changes.

Advice and information for an EHC needs assessment

15. The local authority must gather advice from relevant professionals about the child’s education, health and care needs, desired outcomes and special educational, health and care provision that may be required to meet identified needs and achieve desired outcomes.
16. The local authority must not seek further advice if such advice has already been provided (for any purpose) and the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process. In making this decision, the local authority and the person providing the advice should ensure the advice remains current.
17. The evidence and advice submitted by those providing it should be clear, accessible and specific. They should provide advice about outcomes relevant for the child or young person’s age and phase of education and strategies for their achievement. The local authority may provide guidance about the structure and format of advice and information to be provided. Professionals should limit their advice to areas in which they have expertise. They may comment on the amount of provision they consider a child or young person requires and local authorities should not have blanket policies which prevent them from doing so.

What happened

18. Mrs B and her family were moving to Northamptonshire from a different county on 9 May 2018. Her son C (five years old at that point) has special educational needs due to autism. C had not started school in 2017. He had been attending a mainstream pre-school setting on a part-time basis with therapists funded by Mrs B at the school and at home.
19. The previous authority had carried out a review of C’s EHCP in January 2018 stating that C required full time attendance at school with the support of a tutor qualified in applied behavioural analysis (ABA) and 1:1 teaching across all areas. He also needed weekly input from a speech and language therapist and a package of occupational therapy. The EHCP named a mainstream school in the previous authority area from the start of the spring term.
20. Mrs B applied for a place for C at her preferred school in Northamptonshire (School Z) on 17 April 2018. She explained on the application form about C’s circumstances. On 23 April 2018 the school’s admissions department contacted the SEN department saying it had no record of C and asking whether it should allocate a school place in the interim while awaiting information from the old authority.
21. The SEN department replied saying it had not yet made a decision whether to adopt C’s existing EHCP. If it decided not to it would advise the family to contact the admissions department directly.
22. Mrs B sent an email to the Council on 24 April 2018, saying the family was moving to Northamptonshire on 9 May 2018. She gave details of the current school setting and School Z. She suggested a possible interim solution would be for her to fund C’s ABA tutor to support his transition to school on a part-time basis. She also said the professional reports were nearly two years old and requested up to date ones. She said the old authority had sent the EHCP about a week ago and provided the contact details of the SEN officer.
23. The Council says it received the EHCP on 15 May 2018. On 29 May 2018 it decided to undertake a statutory reassessment of C’s SEN. The decision noted that C was without a school place. It notified Mrs B of this decision by letter on 4 June 2018. Neither the decision notes nor the letter gave any reasons for the decision to reassess. The letter asked Mrs B to clarify whether she wanted a place for C to start now or in September 2018.
24. Mrs B replied by letter on 9 June 2018. She said she wanted C to start school now, if a transition plan could be created and implemented within the small timeframe. She suggested C could attend some visit days.
25. The Council sent a further letter on 13 June 2018 explaining the reassessment process but did not mention any arrangements for the remainder of the school term. It also requested reports on C from the relevant professionals and consulted with School Z.
26. School Z responded on 20 June 2018 saying that it could try and meet C’s needs if the provision in respect of speech and language therapy, occupational therapy and ABA support was provided by the Council. The Council replied on 6 July 2018 confirming it would provide funding for the provision in the existing plan until it had completed its reassessment.
27. Mrs C emailed the Council on 5 July 2018 expressing concern that the reassessment was lengthy and was affecting C’s education. She said C had received no education for two months and asked the Council to say what steps it was taking to ensure C received the education stipulated in his EHCP.
28. The Council replied on 9 July 2018 saying the reassessment was ongoing and it had consulted with School Z who had confirmed a place could be provided. The Council confirmed it would provide the additional funding and the school should be in touch with her soon.
29. The school contacted the Council on 12 July 2018, requested a meeting to urgently arrange a transition or integration plan. The school said it had visited C’s pre-school setting and was concerned that his needs were considerable. It wanted reassurance from the Council that it would fund the necessary support. The Council agreed it would meet the necessary funding until it completed the reassessment. The SEN officer and the Council’s educational psychologist met with the family on 23 July 2018.
30. The Council’s Education Health and Care Team Panel met on 8 August 2018 to decide whether to issue an EHCP. The educational psychologist had provided a report which did not recommend ABA support but said that C responded well to the ABA approach. The Panel agreed to produce a revised EHCP and said ABA was not used in Northamptonshire. It noted that Mrs B preferred a mainstream setting but the Council felt a special school may be more appropriate.
31. The Council produced a draft EHCP on 13 August 2018. It included advice from the educational psychologist. It said a referral to speech and language therapy was required to assess C’s communication needs. It did not include ABA support or any speech and language or occupational therapy.
32. The Council completed a referral to the occupational therapy service at the end of August 2018. The service asked in September 2018 for clarification on what was required.
33. Mrs B commented in September 2018, initially by telephone, that it did not include the parental request for a gradual transition or continued ABA. Mrs B also said the plan did include information in the private reports she had provided (educational psychologist, speech and language therapy and occupational therapy).
34. The Council said it would commission its own reports and this would happen soon. It advised Mrs B to submit her comments in writing.
35. C started at School Z in September 2018 with the provision detailed in the old EHCP funded by the Council.
36. Mrs B said she had funded C’s education between May and September 2018, including ABA support and speech and language therapy sessions, at the pre-school and at home. She spent almost £8,800. On 23 September 2018 Mrs B provided her formal comments on the draft and requested a meeting with the Council. She disagreed with every section of the plan and requested School Z be named.
37. The Council did not meet with Mrs B. It issued the final plan on 1 October 2018, making no changes to the provision and naming the type of school. It added some comments requested by Mrs B. It consulted with School Z and amended the plan on 24 October 2018 to name School Z. From this point, C’s ABA support, speech and language and occupational therapy was stopped
38. Mrs B appealed to the Tribunal about the content of the EHCP. The Council received a speech and language therapy report on 10 October 2018 but did not amend the EHCP to include the content.

Complaint

39. On 19 September 2018 Mrs B complained about the EHC reassessment and the lack of education for C since they moved. She said the Council had completely rewritten the draft EHCP, ignored the reports she provided and removed speech and language therapy provision, occupational therapy provision and ABA support with no explanation.
40. The Council responded to the complaint on 11 October 2018. It said that the Council had decided to carry out a reassessment of C’s EHCP as it was entitled to do and as part of that process had consulted with School Z. It said the school needed to ensure it had sufficient resources and staff to support C so it was not possible for C to start before September 2018. It said the SEN team thought Mrs B did not require interim educational provision as she was intending to continue with the existing pre-school arrangement. It said the Council was entitled to draw up a new EHCP based on the professional advice it obtained and not those used to draw up the previous plan.
41. Mrs B replied on 12 October 2018 saying she had never said she did not require interim education for C and had explicitly stated the contrary in emails to the Council. It was a legal requirement for the Council to obtain the necessary professional advice before issuing a draft EHCP and the Council should have met with her as requested before issuing the final EHCP.
42. The Council responded on 8 November 2018. It said:

The SEND Code of Practice (2014) states that where a child with an EHC plan moves to another county, the new local authority can adopt the existing plan or initiate a statutory assessment of a child’s SEN. The new authority is not required to adopt the plan first; by initiating the new statutory assessment the local authority gives notice that it is not adopting the existing EHC plan.

43. The Council also apologised for misunderstanding that Mrs B had required interim education for C and confirmed he had been entitled to it. It confirmed that it was waiting for reports from the NHS
44. Mrs B complained to the Ombudsman in April 2019.

Tribunal

45. The tribunal hearing took place in June 2019. It decided the education elements and concluded that, in the absence of any alternatives put forward by the Council, the ABA support should be reinstated. It adjourned the case until August 2019 due to an outstanding social care report.
46. Before the hearing Mrs B agreed the remaining sections of the EHCP with the Council and withdrew her appeal. The final EHCP was issued on 30 August 2019, including ABA, occupational therapy and speech and language therapy ready for the start of the autumn term. It also included ABA support at home and out of term-time.

Council action

47. The Council also met with Mrs B on 2 August 2019 to discuss all the concerns she raised in her complaint and clarify issues with the process. The Council accepted that communications with the team should have been clearer and decisions explained more fully. In acknowledgement of the poor communication it agreed to fund immediate support for ABA (an experienced, senior ABA tutor and an ABA tutor) over the summer to review and implement the ABA plan in readiness for C’s return to school in September.

Analysis

Jurisdiction

48. We can consider the Council’s actions up to the issue of a final EHCP when the right of appeal arises. The Tribunal service has provided us with the following general advice about where the line falls between their jurisdiction and ours:

The Tribunal considers appeals against refusals to arrange an assessment or reassessment, against a refusal to issue an EHC Plan or where the Plan has been issued, its contents or a decision to cease to maintain it. The Tribunal considers the original decision afresh, and does not have any regulatory function in relation to the processes of the LA in reaching their decision. The Tribunal’s jurisdiction is to review the decision and not the processes leading to the decision.

49. Actions before the final EHCP is issued and right of appeal arises are in our jurisdiction. But often while we can identify fault it is difficult to assess injustice because this is inextricably linked to the decision being appealed. Sometimes where a parent approaches us after a successful appeal we are able to say that, but for fault, the appeal would have happened earlier and remedy injustice for the earlier delay. But we cannot remedy delay during the tribunal process.
50. In this case we can look at the events between May 2018 when the family moved to Northamptonshire and 1 October 2018 when the final EHCP was issued and the right of appeal to the tribunal arose.

provide education for him from 9 May 2018 when the family moved into the area

51. C was of statutory school age and the Council had a duty to provide education for him. It said it believed Mrs B was happy for C to stay in the pre-school setting. However, this view is not based on any evidence. Mrs B said in April 2018 that she wished C to have a transition programme. In June 2018 she said she wanted him to start school now, at least with visit days. A month later in July 2018 she complained C had been without education for two months.
52. I have seen no evidence that the Council made any attempt to provide C with education while it carried out the reassessment. It was aware C was without a school place. It assumed Mrs B was happy for C to stay at pre-school without any evidence of this. Its consultations with School Z never mentioned any time-frame and it was the school who expressed concern about the urgency of the situation in July. This was fault.
53. I also consider it misrepresented the view of the school in its complaint response by indicating it was the school’s view that it could not provide a place until September. The Council had never asked it to provide a place immediately but instead concentrated on the EHC provision. The school has not had the opportunity to consider an early start or transition plan because the Council had never requested it. This was fault.
54. C missed out on almost a term of education in a school setting.

maintain his EHCP which transferred from his old local authority when they moved

55. The Code is clear that the Council had a duty to maintain the existing EHCP provision from the date it received the EHCP from the old authority. In this case it was 15 May 2018.
56. The Council said in its complaint response to Mrs B that it had a choice whether to maintain the existing statement or carry out a reassessment. It said that because it chose to carry out a reassessment it was giving notice that it was not going to adopt the existing statement. This is wrong.
57. The Council had a duty to maintain the existing statement while it carried out the reassessment. It did not do so until the beginning of September 2018 when C started school. This was fault. C was not affected by this as he continued to have support but at a significant cost to Mrs B.

explain why it decided to carry out a reassessment of the EHCP

58. The Code only requires the Council to provide reasons if it refuses to carry out an assessment following a request. However, in this situation I consider the Council should have given some reasons why it wished to reassess C, so Mrs B could properly understand the decision. The EHCP had been reviewed less than five months earlier and was set up for C to start at school.
59. The Panel notes gave no reasons for the decision to reassess or the decision to proceed to an EHCP. The only issue noted was that Northamptonshire did not provide ABA support. It is understandable Mrs B reached the conclusion that the Council was making the decision to avoid providing ABA support as a blanket policy rather than addressing C’s individual needs.

gather appropriate or complete professional advice before drafting the new EHCP and ignored the professional reports provided by Mrs B

60. The Code requires the Council to obtain advice from relevant professionals as part of the assessment. It also says the Council must not seek further advice if such advice has already been provided and all parties involved are satisfied that it is sufficient for the assessment process.
61. Mrs B said in her initial email that professional reports were two years old so new ones would be helpful. However, she also provided recent independent reports she had commissioned on a private basis. The Council requested up-to date information but only receive the educational psychologist report before it issued the draft EHCP.
62. The Council said it was seeking information from the speech and language therapist and the occupational therapist, but this did not materialise before the final EHCP was issued. In these circumstances I consider the Council should at least have referred to the private reports obtained by Mrs B. They were relevant, up-to-date and based on recent observations of C. The Council has provided no evidence to show that it even considered these reports.
63. The Council should also have provided reasons why it was discounting them. The Code encourages consideration of all relevant and current information. It also says a Council should not have blanket policies preventing professionals from commenting on the amount of provision a child requires.
64. I see no reason why the information in these reports could not have been used by the Council. Its insistence on obtaining its own reports to the exclusion of everything else was not in accordance with the Code and was unhelpful, particularly as it failed to obtain any new information regarding speech and language or occupational therapy, within the reassessment timeframe.
65. I also note the Council failed to arrange a meeting with Mrs B prior to issuing the final EHCP, despite her request. This would have been an opportunity for the Council to provide further explanation for the changes it had made and I consider it was fault not to have arranged this.

Agreed action

66. In recognition of the injustice caused to C by the failure to provide education for him between May and July 2018, I asked the Council to pay Mrs B £1200 to be used for C’s educational benefit.
67. In recognition of the costs Mrs B incurred by the failure to maintain the existing EHCP between May and September 2018, I asked the Council to pay Mrs B £1800.
68. In recognition of Mrs B’s time and trouble along with the frustration and inconvenience caused by the failure to give reasons for decisions or consider the information she provided, I asked the Council to pay Mrs B £500.
69. The Council has agreed to my recommendations and I ask it to implement them within one month of the date of this decision.

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Final decision

70. I consider this is a reasonable ad fair way of resolving the complaint and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman