Summary: Ms Y complained the Council failed to provide her son with support set out in, delayed the review and amendment of, his Education, Health and Care Plan, and failed to provide him with a suitable education. We have found fault by the Council causing injustice. The Council has agreed to remedy this by apologising, making payments to acknowledge the impact on Z of the loss of education and reflect Ms Y’s upset and time and trouble.

The complaint

1. The complainant, who I am calling Ms Y, complained about the way the Council dealt with the review of her son, who I am calling Z’s, Education, Health and Care Plan (EHC Plan), provision for his special educational needs and a suitable education.
2. Ms Y says the Council:

• failed to provide the support in Z’s EHC Plan from September 2019
• delayed completing the review of his existing plan and the issue of an amended plan.
• failed to provide him with a suitable education from September 2020.

3. Ms Y says these failures damaged Z’s education, affected his wellbeing, their family life and her ability to return to work. She incurred the cost of providing Z with educational materials. He is still without an appropriate school place.

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What I have investigated

4. I have investigated Ms Y’s complaint about the Council’s actions from September 2019 until July 2021. The reasons for not investigating the later part of the complaint are set out at the end of this decision.

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The Ombudsman’s role and powers

5. 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)
6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, sections 26(6)(a) as amended)
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)
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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How I considered this complaint

9. I spoke to Ms Y, made enquiries of the Council and read the information Ms Y and the Council provided about the complaint
10. I invited Ms Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Education, Health and Care Plan (EHC Plan)

11. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and arrangements for meeting them.
12. Councils have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
13. The Special Educational Needs and Disability Tribunal (SEND) considers appeals against council decisions about special educational needs provision.
14. The SEND Code of Practice (the Code) issued by the Department of Education, provides statutory guidance for councils on their duties under the Children and Families Act 2014 and associated regulations.

Transfer of EHC Plans

15. Where a child with an EHC Plan moves from the local authority maintaining the plan (the old authority) to a new local authority area, the old authority must transfer the EHC Plan to the new authority. (Children and Families Act 2014 section 47 and regulation 15 SEND regulations 2014)
16. The Code sets out what should happen:

• 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.
• The new authority must arrange the special educational provision set out in the EHC Plan from the date of the transfer.
• Where the child’s attendance at the educational placement named in the plan is no longer practicable because of the move, the new authority must arrange for their attendance at another appropriate educational placement until it is possible to amend the plan.
• Within six weeks of the transfer, the new authority must tell the child’s parent the plan has been transferred, whether it proposes to make an EHC needs assessment and when it proposes to review the plan.
• The new authority must review the plan before the expiry of the later of the period of 12 months beginning with the date of the making of the plan or previous review, or three months from the date of the transfer.

EHC Plan; annual review process

17. The Code says councils must review EHC Plans at least every 12 months and sets out the process they must follow for these annual reviews.
18. Within four weeks of the review meeting, the council must decide whether it will keep the EHC Plan as it is, amend or cease to maintain the plan, and notify the child’s parent. If it needs to amend the plan, the council should start the process of amendment without delay.
19. The council must send the draft amended EHC Plan to the child’s parent or young person and give them at least 15 days to give views and make representations about the content.

20. Following representations from the child’s parent, the council must issue the amended EHC Plan as quickly as possible and within eight weeks of the issue of the draft amended plan. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so. The Special Educational Needs and Disability Tribunal (SEND) is responsible for handling appeals against local authority decisions about special educational needs.

Alternative educational provision

21. If a child of compulsory school age cannot attend school for reasons of illness, exclusion from school or otherwise, the local authority must make arrangements to provide suitable full-time education either at school or elsewhere, such as home. This is known as alternative provision. (Education Act 1996, section 19 as amended)
22. The term “suitable education” is defined as efficient education suitable to the child’s age, ability and aptitude and any special educational needs they may have. The education to be arranged by the council should be on a full-time basis unless, in the interests of the child, part-time education is considered more suitable, for reasons of their physical or mental health.
23. There is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.

What happened

24. I have set out a summary of the key events below. It is not meant to show everything that happened.
25. Z has special educational needs. He has a diagnosis of Autistic Spectrum Disorder (ASD). He has an EHC Plan. Up until 2018 he and his family lived in another local authority area (the old authority).and he attended the mainstream secondary school named in his plan.
26. Z’s EHC Plan said he had complex needs and required a very high level of appropriate support from teachers, SENCo, teaching assistants and support staff, together with input from a specialist teacher of a minimum of one hour per half term. I understand six hours of high needs funding was provided by the old authority in addition to school resources. In April 2018, the old authority completed the annual review of Z’s EHC Plan. In July 2018 it confirmed the existing provision, as detailed in the plan, should be maintained.
27. Z and his family lived abroad from late 2018. They returned in Summer 2019 and moved to a home within the Council’s area.

September 2019 to July 2020

28. On 6 September 2019 Ms Y contacted the Council’s school admissions team. She explained Z needed a school place, had an ASD diagnosis and an EHC Plan.
29. Ms Y applied for a place for Z at a local mainstream secondary school. He started at this school on 7 October.
30. On 23 October the Council’s SEN advisory officer contacted the school about converting Z’s EHC Plan with the old authority to a Council plan.
31. A review of Z’s EHC Plan was held on 8 January with the Council, the school and Ms Y. The review report said this was an interim review, there was an EHC Plan in place from another local authority which needed to be converted to a Council plan and there was currently no funding in place.
32. The Council did not take further steps regarding Z’s EHC Plan until September 2020.

August 2020 to July 2021

33. In August Ms Y contacted the school about Z’s SEN support. The school told her Z did not have an EHC Plan and they did not have the resources to provide him with a teaching assistant. Ms Y said she was surprised Z did not have a plan in place after a year and she was not confident Z could return to school without this support.
34. Ms Y discussed the position with the Council. The Council told her it had been unable to move forward with Z’s plan without confirmation from the old authority the plan had not ceased. It said if a new plan was needed this could take months. Ms Y was unhappy about this. She had been considering moving Z to another local mainstream secondary school but it had said it could not consider offering Z a place without his EHC Plan in place.
35. On 10 September the old authority sent an email to the Council in which it:

• provided the link to Z’s plan further to their telephone conversation.
• said it had sent this information to the Council by email in January 2020 as requested by Ms Y.
• confirmed the plan had not been ceased.

36. The Council had a meeting with Ms Y and the school in November to discuss Z’s EHC Plan and how he could return to school safely. The Council agreed to draft his plan urgently.
37. In December the Council sent Ms Y a draft EHC Plan. It said it had taken so long to do this because there was uncertainty Z needed an EHC Plan until confirmed in the review. Ms Y provided her comments on the draft plan.
38. In January 2021 Ms Y asked for a re-assessment of Z’s needs. This was offered by the Council in February.
39. A new draft plan was issued in June. Ms Y had told the Council her preference was an independent school for Z. The Council consulted with this school, Z’s existing mainstream secondary school and another local mainstream secondary school.
40. On 18 July, the Council issued the final EHC Plan naming Z’s existing mainstream secondary school. Ms Y appealed to SEND. Initially her appeal was against the Council’s decision to name Z’s existing school instead of her preferred placement. But her preferred school has now said it is too late for Z to start there, because of the amount of GCSE learning he has missed. Ms Y is now appealing for suitable alterative provision to be put in place for Z.

Ms Y’s complaint

41. Ms Y complained in December 2020 about the Council’s delay in issuing its EHC Plan for Z and the lack of provision for him in the meantime. She said:

• His existing school was unable to meet his needs and she was worried about its ability to keep him safe. He had diabetes and was vulnerable to Covid-19. Because of this he had not been able to return to school.
• He had not received an adequate education since 2019 and no education from September 2020.
• She had provided him with tuition and educational materials for which she should be reimbursed.

42. In response the Council said:

• It accepted there had been a lack of timeliness in producing the draft amended EHC Plan. But when Ms Y and her family moved to its area in 2019 it was unsure whether Z’s EHC Plan was still in place and what amendments would be needed. It took some time to obtain this information from the previous local authority.
• Decisions about the type of school and additional support were part of the EHC Plan process. As there was a difference of opinion about Z’s needs and the most appropriate type of school, it offered to complete a reassessment.
• The final plan had been delayed because they had been consulting about different placements. It would now issue the final plan, naming his current school, while continuing to consult about other schools.
• It had been her decision not to allow Z to return to school from September 2020.

43. Ms Y complained to us in April 2021.

Analysis – was there fault by the Council causing injustice?

Transfer of Z’s EHC Plan

44. My understanding is the old authority was not aware in September 2019, Z had moved to the Council’s area. But the Council had been provided with a copy of Z’s EHC Plan with the old authority, it knew Z and his family had spent the last year living abroad, and Z was now living within its area. And provided the EHC Plan had not ceased, the Council knew the old authority should now transfer the EHC Plan to it. The Council told Z’s school in October 2019 it needed to ‘’convert his plan over to our CWAC paperwork’’.
45. I consider the Council should have contacted the old authority in September 2019 to establish the position regarding Z’s EHC Plan and ask for it to be transferred. The evidence I have seen indicates the Council did not so this until September 2020. My view is this delay was fault by the Council.
46. Had it contacted the old authority in September 2019, I consider it likely the plan would have been formally transferred by the start of October 2019 and from that point the Council would have been responsible for providing the SEN support set out in the plan.

Provision of SEN support

47. The evidence I have seen indicates Z did not receive the very high level of appropriate support from teachers, SENCo, teaching assistants, support staff and specialist teacher input, as provided in his EHC plan in the school year from October 2019. The Council did not provide any funding for his support to the school and my understanding is Z received only limited teaching assistant support.
48. Z’s school closed on 23 March 2020 because of the national lockdown. Although councils remained under a statutory duty to arrange full provision in EHC Plans until 1 May 2020, Z’s provision was for support in school. I do not consider I can find fault by the Council for failure to make provision during this period.
49. The Government issued new guidance which relieved councils of their duty to arrange EHC Plan provision from 1 May 2020 to 31 July 2020 during which time they were only required to make reasonable endeavours to arrange SEN provision. I have not seen any evidence Ms Y asked the Council about arrangements for SEN support for Z between March and July 2020.
50. I consider the Council was at fault for failing to provide Z with the high level of support specified in his EHC plan from October 2019 to 20 March 2020. Because of this Z did not receive all the support he needed during this time.

Review and issue of amended EHC Plan

51. The last review of Z’s plan by the old authority was in April 2018. The Council reviewed the plan with his new school and Ms Y in January 2020. It should then have followed the annual review process. But, based on the evidence seen so far, the Council took no further action to complete the review until September 2020. In my view this was fault.
52. Because of the Council’s inaction, Ms Y was not informed of the position with the plan, whether it was being maintained, amended or ceased and had no opportunity to appeal the content of the plan. Z’s school appears to have been under the impression Z did not have a plan in place and he was not provided with the SEN support set out in the plan.
53. There were further delays by the Council in completing the final amended plan. This should have been done within 12 weeks of the draft amended plan, which was issued in December 2020. But the final amended plan was not completed until 18 July 2021. Even allowing for the additional time needed to carry out the agreed re-assessment of Z’s needs, this was outside the statutory timescales. I consider this was fault by the Council. This delayed Ms Y’s right to appeal against the content of the plan and named placement.

Provision of Alternative Education

54. I have not seen any evidence the Council challenged Ms Y’s concern about Z returning to school in September 2020 without the appropriate SEN support in place. The Council knew about the lack of support for Z and in November 2020 it accepted an amended EHC plan was needed to allow him to return to school safely.
55. I consider the Council accepted Z could not attend school without appropriate support in place and this would take more than 15 days to arrange. On this basis it had a duty to provide him with suitable full- time education as alternative provision. It did not make any provision for Z and in my view, its failure to do so is fault.
56. Ms Y was left by the Council to make what provision she could for Z’s education from September 2020. She has told us she incurred the cost of obtaining tuition and educational materials for Z.
57. Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that child.
58. I consider the payment from October 2019 to March 2020 should be towards the lower end of the scale because Z attended school and I understand he had some limited access to support from a teaching assistant during this time.
59. But I consider the payment from September 2020 to July 2021 should be at the highest end of the scale. The Council did not make any alternative provision for Z during this key period in his education, when he should have been working towards his GCSEs.

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Agreed action

60. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:

• Apologise to Ms Y for its failure to provide Z with the full support in his EHC Plan from October 2019 to 20 March 2020 and a suitable education from September 2020 to July 2021. It should also apologise for the delay in completing the review process and issuing the final amended EHC Plan.
• Apologise to Z for its failure to provide him with the full support in his EHC Plan from October 2019 to 20 March 2020 and a suitable education from September 2020 to July 2021.
• Pay Ms Y £350 for each school month of inadequate SEN provision for Z from 7 October 2019 to 20 March 2020 (a period of 20 school weeks), making a total of £1,615, to be used for the benefit of Z’s education.
• Pay Ms Y £600 for each school month of education Z missed from September 2020 to July 2021 (a full school year of 39 weeks) making a total of £5,400. I consider it appropriate for this payment to be used to reimburse Ms Y for costs she incurred in providing tuition and educational materials for Z during this period, with the balance being used for the benefit of Z’s education.
• Pay Ms Y £200 to acknowledge the opportunity she lost to appeal the provision and placement made for Z because of the delay in issuing an amended final EHC Plan. This figure is a symbolic amount based on the Ombudsman’s published guidance.
• Pay Mrs Y £500 to reflect her time and trouble in trying to get the Council to fulfil its statutory responsibilities and upset caused by its delays in completing the review process. This figure is a symbolic amount based on the Ombudsman’s published guidance.

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Final decision

61. I have found fault by the Council causing injustice. I have completed my investigation on the basis the Council will carry out the above actions as a suitable way to remedy the injustice.

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Parts of the complaint that I did not investigate

62. I have not investigated the complaint about the Council’s actions from July 2021. This is because I consider the reason Z could not attend school during this period was linked to the ongoing appeal to SEND about the extent of and placement for the special educational provision in his EHC Plan. So this part of the complaint is not in our jurisdiction.

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Investigator's decision on behalf of the Ombudsman