The Ombudsman's final decision:
Summary: Ms X complained about delays in naming a suitable school for her grandson, F, when the Council accepted a transfer of his Education, Health and Care (EHC) Plan from a different council. The Council failed to name an appropriate placement for F between February and April 2021 after it accepted the transfer of his EHC Plan. This meant F was without any education for five weeks. The Council agreed to pay Ms X a total of £600 to recognise F’s lost education during that period and the distress and uncertainty caused.
- Ms X complains about the Council’s handling of her grandson, F’s, education when he went to live under her care during 2021. She says the Council has named an inappropriate placement and failed to provide F with education in line with his Education, Health and Care (EHC) Plan between February and July 2021.
- Ms X says the matter caused F a loss of educational and social opportunity which has caused distress and uncertainty.
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)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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 decision statement.
- 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)
- 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.
How I considered this complaint
- I spoke to Ms X about her complaint and considered information she provided.
- I considered the Council’s response to my enquiry letter.
- I considered relevant law and statutory guidance, including:
- The Special Education Needs and Disability (SEND) Regulations 2014.
- The Special Educational Needs and Disability (SEND) Code of Practice.
What I found
- Children with complex needs may require an Education, Health and Care (EHC) Plan. This is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
- Councils are responsible for making sure all the arrangements set out in in the EHC Plan are put in place.
- The Council has a legal duty to ensure the educational and social care support set out in a final EHC plan is delivered. This duty is non-delegable.
Transfer of EHC Plans between councils
- Where a child or young person moves to another council, the ‘old’ council must transfer the EHC plan to the ‘new’ council. The new council must tell the child’s parent or the young person, within six weeks of the date of transfer, when it proposes to make an EHC needs assessment.
- The requirement for young person or child to attend the educational placement specified in the EHC Plan continues after the transfer. However, where attendance to the named placement would be impractical then the new council must place the child or young person temporarily at an appropriate placement other than that specified. This is until the EHC Plan is formally amended.
- The new council must tell the child’s parent within six weeks of the date of the transfer when they will review the plan. The new council must review the plan before one of the following deadlines, whichever is later:
- Within 12 months of the plan being made or being previously reviewed by the old council, or
- Within 3 months of the plan being transferred.
The SEND Tribunal
- Certain SEN decisions have a right of appeal to the SEND Tribunal. We would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect the person to appeal.
- Some of the decisions which are appealable and usually out of our jurisdiction include the named placement in section I of the EHC Plan.
Relevant alternative provision case law
- (R(R) v Kent County Council  EWHC 2135 (Admin)) established how an education authority’s duty to offer alternative education is determined where the reason for absence is “other” rather than illness or exclusion. This stated the duty is determined by “the objective consideration of whether the education offered is reasonably possible or reasonably practical to be accessed by the child in question.”
- Ms X has a grandson, F, who in 2020 lived in a different council area, Council B. At this time F was in year 6 and attended school in Council B’s area with an EHC Plan. F’s EHC Plan named the type of placement as a special school. Council B had last reviewed F’s EHC Plan in December 2020.
- In early 2021 F went to live with Ms X and therefore moved to the Council’s area. Records show the Council accepted F’s EHC Plan from Council B on 22 February 2021. However, the Council had not identified a suitable placement for F at the time it accepted his plan. F remained living for a period in Council B’s area while he awaited a suitable school placement.
- Records show the Council began consulting with schools for F. Ms X wanted F to go to school 1 however it was full. The Council continued consulting with various schools for F.
- In March 2021 Ms X raised a formal complaint with the Council for failing to secure a suitable school for F since he went to live with her in February. The Council responded in mid-April 2021 and partially upheld her complaint. The Council said it was consulting with specialist placements for F and had offered temporary tuition which Ms X had declined. The Council said some of the possible schools it had consulted were either full or could not meet F’s needs. The Council said it had now consulted for a place at School C which was a specialist secondary school. It said F could attend this school for the remainder of the academic year and then start year 7 in September 2021. The Council thought this was suitable as it would minimise transition and change for F. The Council apologised for the delay in securing a suitable placement which it accepted had caused Ms X and F frustration and distress. The Council said it proposed to bring F’s annual review forward to the summer term.
- The Council provided Ms X with a formal notice on 22 April 2021 which confirmed it had accepted the transfer of F’s EHC Plan from Council B. The notice said School C had been named in F’s EHC Plan. The notice confirmed the Council would bring F’s annual review forward and carry it out within three months of the date of transfer.
- In early May Ms X emailed the Council unhappy that it had named School C in F’s EHC Plan. She said School C was unsuitable. She asked the Council to provide tutoring in Council B’s area while F awaited a different placement. The Council said that as it had confirmed School C as suitable then it would not provide tutoring.
- Records show F began attending School C at the end of May 2021. Following this Ms X wrote to the Council again. She said F did not like School C and she reiterated that it was not suitable for someone with F’s needs. She said F would not return to School C. Ms X asked the Council to consider placing him in a primary school below his chronological age which would allow him to complete year 6 again the following year.
- The Council carried out F’s annual review in early June 2021. Records of the review show Ms X reiterated her view that she would like F to be placed in a primary school setting with a view to moving to a mainstream secondary school in September 2022.
- The Council issued F’s amended final EHC Plan in August 2021 which named School C as his placement for the 2021/22 academic year. The decision letter to Ms X included details about her right of appeal to the SEND tribunal.
- Remaining unhappy Ms X complained to us. She complained about the lack of education for F between February and July 2021 and about the Council’s decision to name School C as his placement.
- Since complaining to us Ms X said F started at School C in September 2021 and is now settled there and does not want to move.
The Council’s response to our enquiry letter
- The Council said it accepts it did not provide suitable education for F between 22 February and 22 April 2021 and that it did not provide tuition during this period either. It said it has since reviewed its procedures for placing children who require specialist provision when they move into its area. It now escalates cases where children are without education to its Director of Education.
- The Council said however F had a suitable placement from 22 April onwards in School C. It said Ms X had a right of appeal against this following its issuing of F’s amended EHC Plan which she did not exercise.
- The Council accepted F’s EHC Plan transfer from Council B on 22 February 2021 however it did not provide Ms X with a formal notice naming his placement until 22 April 2021. The Council also failed to put in place tuition during this period. All of this was fault and not in line with relevant law and statutory guidance. It meant F did not receive suitable education in line with his EHC Plan during this period. It also caused both F and Ms X distress and uncertainty. The Council has apologised to Ms X but in line with our guidance on remedies I have made a further recommendation below to remedy the injustice these faults caused.
- The Council named School C as F’s placement from 22 April 2021 onwards. It also informed Ms X of its intention to bring forward F’s annual review. Although Ms X was unhappy the Council named School C the law and statutory guidance allows the Council to name a temporary placement pending an annual review, which the Council appropriately brough forward. School C is a specialist school and there is no evidence showing it was unsuitable to meet F’s needs and it was reasonably practical for F to attend. This is supported by the fact F is now settled there. Having named School C as appropriate and suitable there was therefore no obligation for it to provide alternative provision after April 2021. There was no fault in the Council naming School C as F’s temporary placement and therefore it was not at fault for F’s lack of education from 22 April 2021 until the end of the academic year.
- The Council carried out F’s annual review in June 2021 and issued his amended final plan in August 2021 which named School C. At this point Ms X had a right to appeal both the content of the plan and the naming of School C and these rights were provided to Ms X in the decision letter in August 2021. Therefore, I have not considered this point any further and in any case Ms X says F is now attending and settled at School C.
- Within one month of the final decision the Council agreed to:
- pay Ms X £500 to recognise F’s loss of education between February and April 2021 and the distress and uncertainty this caused him when it failed to name an educational placement for him or provide alternative provision during this period after it accepted transfer of his EHC Plan from a different council. Ms X should use this money for F’s educational benefit as she sees fit.
- pay Ms X £100 to acknowledge the distress and uncertainty the matter caused her.
- provide the Ombudsman with evidence of how it has changed is procedures to ensure children transferring with EHC Plans from a different council area are placed in suitable placements in line with relevant law and statutory guidance.
- I completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.
Investigator's decision on behalf of the Ombudsman