Summary: The Council was at fault for the delay in finding Mrs X’s son a suitable school placement and provide him with the provision as outlined in his Education, Health and Care Plan. To remedy the injustice caused by the fault, the Council has agreed to make a payment to Mrs X and her son. The Council has also agreed to make a service improvement.

The complaint

1. The complainant, whom I refer to as Mrs X, complained the Council did not provide her son, Y, with the provision outlined in his Education, Health and Care (EHC) plan after he moved from another local authority area. Mrs X also complained the Council delayed in arranging a suitable school place for Y and throughout the process it communicated poorly with her.

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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. 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

4. I considered Mrs X’s complaint and the information she provided.
5. I considered the information I received from the Council in response to my enquiries.
6. Mrs X and the Council were given the opportunity to comment on a draft of this decision. I considered the comments I received from Mrs X and the Council before making this final decision.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Education, Health and Care (EHC) Plan

8. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’, (the Code), sets out the process for carrying out EHC assessments and producing EHC plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
9. Children with complex needs may require an EHC plan. This is a legal document which sets out what is required to meet the child’s needs by education, health and social care. This can include support needed in school.
10. The process of assessing needs and developing EHC plans ‘must be carried out in a timely manner’. Local authorities should ensure they have planned sufficient time for each step of the process so that wherever possible, any issues or disagreements can be resolved within the statutory timescales. Steps should be completed as soon as practicable.
11. Councils are responsible for making sure all the arrangements set out in in the EHC plan are put in place.
12. 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

13. 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. 
14. The requirement for a 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.
15. 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.

What happened

16. What follows is a brief chronology of key events. It does not contain all the information I reviewed during my investigation.
17. Mrs X and her son Y, used to live in Council Area A. Y has a diagnosis of Autistic Spectrum Condition (ASC) and Attention Hyperactivity Disorder (ADHD). Council A issued Y with an EHC plan in 2017 and named a mainstream school in its area. On 5 May 2020, Council A held an annual review of Y’s EHC plan.
18. Y attended the mainstream school where he had all-day adult support. Y was a Year 5 pupil and Mrs X had discussions with Council A about transferring him to a more specialist environment for the start of Year 7.
19. The family moved to the Kent County Council (the Council) area in September 2020. Y continued to attend the mainstream school in Council Area A until November 2020 when Mrs X decided to home educate him whilst a more local school was found.
20. The Council received notification on 20 November 2020 from Council A that Y had moved to its area and that he had an EHC plan. Y’s SEN file was transferred to the Council on 10 December 2020.
21. On 13 January 2021, the Council asked School 1, a mainstream school, to hold an annual review meeting to review Y’s EHC plan within three months. School 1 declined. The Council consulted with another school (School 2) on 3 March 2021. School 2 was unable to offer Y a place.
22. On 19 March 2021, the Council formally consulted with School 1 again. School 1 told the Council it was unable to offer Y a place because it was not able to meet his needs and it provided detailed reasons.
23. On 24 March 2021, the Council made a referral for interim home tuition and advised Mrs X it would be arranging an annual review of Y’s EHC plan ‘as a matter of urgency’. Mrs X was unhappy the Council were making decisions on Y’s education with information that was out of date because it had failed to review his EHC plan within three months of receiving it.
24. Mrs X was unhappy that after four months the Council was no further forward in securing a placement for Y. She wrote to her local MP and sought legal advice. Mrs X’s concerns were forwarded to the Council by her MP and the Council lodged the communication as a stage 1 complaint.
25. On 13 April 2021, the Council sent a formal notice to Mrs X to notify her it had decided to amend Y’s EHC plan. An annual review meeting was held on 28 April 2021. On 30 April 2021, the Council decided a full needs assessment was required. It arranged for Y’s needs to be assessed by an Educational Psychologist (EP).
26. The EP’s report was issued on 13 May 2021. On 26 May 2021, the Council reviewed the updated information it had on Y’s needs and it agreed that consulting specialist placements was appropriate. The Council consulted with three maintained special schools (Schools 3, 4 and 5) and also with School 6, Mrs X’s preference, an independent special school.
27. Mrs X was unhappy with the Council’s stage 1 response to her complaint that she received on 1 June 2021. Although the Council had apologised for the lack of communication and not finding a school place for Y, it failed to explain the delays, failed to identify what steps it was planning to take for a resolution and directed Mrs X to a contact in the Council who had been removed from Y’s case. On 4 June 2021, Mrs X requested her complaint be escalated to stage 2 of the complaints process.
28. The Council issued a draft EHC plan for Y on 11 June 2021.
29. On 17 June 2021, School 4 offered Y a place but then withdrew the offer on 20 June 2021 after consulting the updated EHC plan and the completion of a taster day at the school. It said that it could no longer offer Y a place because it could not meet his needs identified in the updated plan.
30. Mrs X was worried the school summer holidays were approaching and the Council had not secured a school place for Y to start in September 2021. The Council acknowledged it was a possibility that it may have no school to name for September and so it consulted with a further three schools (Schools 7, 8 and 9). It advised Mrs X that if it was unable to secure a placement for Y, the tuition he was receiving would continue while it continued to source a school placement.
31. On 5 July 2021, School 6, Mrs X’s preference, requested an assessment day to inform their decision to offer a placement. However, School 6 withdrew their offer to assess Y as they no longer had a place in his year group.
32. On 19 July 2021, the Council sent its stage 2 complaint response to Mrs X. The Council acknowledged Mrs X’s preference for School 6 and explained it was unable to agree to this as a placement for Y at the school would be unreasonable public expenditure.
33. By the end of the summer term, Y remained without a school place. Mrs X consulted with School 4 and after discussions, it agreed it could meet Y’s needs. Mrs X advised the Council and it then named School 4 on Y’s EHC plan which was finalised on 23 July 2021.
34. Y began his placement at School 4 in September 2021.

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Analysis

35. Councils have a statutory duty to make other arrangements to educate a child where there are reasons for them not being in school full time. Section 19 of the Education Act 1996 says that 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 make arrangements to provide ‘suitable education’ either at school or elsewhere.
36. The Council’s section 19 duty was engaged once it became aware that Y was living in its area. The Council received notification of the transfer from Council A on 20 November 2020. Within 6 weeks of this date the Council should have notified Mrs X when it would review Y’s EHC plan. It failed to do this. This is fault.
37. The evidence shows steps to arrange a review of Y’s EHC plan were not taken until April 2021. Although the Council contacted School 1 in January 2021, it did not formally consult with the school until 23 March 2021. The Council has acknowledged it should have acted sooner.
38. I also find fault in the Council not providing the provision outlined in Y’s EHC plan until it issued its updated EHC plan in July 2021. The Council was entitled to review the EHC plan but until it completed that review, the existing EHC plan was still a current and relevant legal document. Although the Council arranged some provision in the form of home tuition in March, it is clear Y did not receive all provision in accordance with his plan from November 2020 to July 2021. This is likely to have had a direct and detrimental impact on Y’s education. The evidence shows Mrs X had advised the Council on several occasions the longer Y was out of school, the more difficult his return would be due to his anxiety. This demonstrates the likely impact on Y’s health and wellbeing.
39. Between November 2020 and April 2021 Mrs X received very little contact from the Council. On multiple occasions Mrs X’s requests for the Council’s policy and process on transferring EHC plans were ignored. The Council says this was due to staff absence in the SEN department.
40. The Council’s complaints policy states it will respond to complaints at stage 1 within 20 working days. The Council responded to Mrs X’s complaint after 44 working days. This is fault. The lack of information and contact caused Mrs X a great deal of frustration and she felt she had no option but to go to her local MP, the Department for Education and seek legal advice.
41. The Council has apologised in writing to Mrs X in its complaint responses for the delays in arranging suitable provision for Y. It is welcomed that during this investigation, the Council has written to the Ombudsman to acknowledge its fault and offer suitable remedies to the injustice caused to Y. In reviewing the Council’s suggested remedies, I considered the length of time Y did not receive any education and the duration his special educational needs were not met.

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Agreed action

42. The Council has agreed that within 4 weeks of this final decision, it will pay Mrs X:
• £2,400 for the benefit of Y’s education, health and wellbeing,
• £500 for time and trouble spent pursuing this complaint and for the distress and frustration it caused to her; and
• £100 for materials she purchased to home educate Y when he was without a school place.
43. I welcome the work the Council has done to amend and simplify the procedure for cases being transferred into its area. In addition to this, within four weeks of this final decision, the Council has agreed to provide evidence to the Ombudsman that it has communicated the simplified process to all relevant council officers to ensure they are aware of the Council’s responsibilities and the statutory timescales that apply.

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Investigator's decision on behalf of the Ombudsman