Summary: Mr D complained the Council failed to secure education for his daughter, who has special educational needs, for nine months after they moved into its area. We have found fault, as the Council failed to secure (or make sufficient efforts to secure), temporary education while it assessed her needs. This led to a significant loss of service to Mr D’s daughter. We set out at the end of this statement action agreed by the Council to remedy this injustice and learn wider lessons from this complaint.

The complaint

1. I have called the complainant ‘Mr D’. He complains the Council failed to secure suitable education for his daughter (whom I will call ‘E’) when they moved to the Council’s area in January 2022.
2. E is a child with special educational needs. Mr D says because the Council did not find her a school place until September 2022 her health suffered. This put a strain on him and his wife who have been required to stay at home to help care for her. He considers the Council’s actions have failed to protect E’s rights under the Human Rights Act.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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’. 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)
5. If we are satisfied with an organisation’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

6. Before issuing this decision statement I considered:

• Mr D’s written complaint to the Ombudsman and supporting information he provided; this included correspondence between Mr D and the Council about the matters covered by the complaint which pre-dated our investigation;
• information provided by the Council in reply to my written enquiries;
• relevant law and Government guidance referred to in the text below;
• relevant guidance published by the Ombudsman referred to in the text below.

7. Mr D and the Council were given chance to comment on a draft of this decision statement. I took account of any comments they made and/or any further evidence they provided before issuing this final decision.
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. This will be in advance of publishing the decision on our website.

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What I found

Summary of the law and statutory guidance in England – Special Educational Needs (SEN)

9. A child with SEN may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.
10. 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 EHCPs. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:

• the process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).

11. The Code provides specific guidance at paragraphs 9.157 to 9.162 about what happens when a child with an EHCP moves between local authority areas. It says that where it is impractical for a child to remain in the same education institution (for example because of distance) “the new authority must place the child temporarily at an appropriate education institution” (emphasis as per original). During this temporary placement the Council can review an existing EHCP or undertake an assessment to complete a new EHCP. The EHCP will then identify a permanent education placement for the child.

Summary of the law and statutory guidance – Alternative Provision

12. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19).
13. This applies to all children of compulsory school age living in the local council area, whether or not they are enrolled at a school. (Statutory guidance ‘Alternative Provision’ January 2013)
14. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school, out of sight? – July 2022) In this we explained that it was unacceptable for councils to provide alternative education provision that was not full-time or equivalent; unless full-time education would not be in the best interests of the child. We took account that personal one-to-one tuition is more intensive and so the numbers of hours could be fewer.

East Sussex County Council policy for children moving into its area & those who are out of school

15. Where a child moves into its area the Council’s policy is that parents should apply for their child to join their preferred school. They are not guaranteed admission and the Council will look for an alternative if the school has reached its admission number. But the parent will have appeal rights if refused a place and the Council may ask a school to admit a pupil over its admission number in certain circumstances.
16. The Council says this policy applies to children with SEN, except for those who also have an EHCP. It says that all its mainstream schools should be able to support children with SEN who do not have an EHCP.
17. To ensure that all children have access to a school place the Council has a Fair Access Protocol. This is a legal requirement. The protocol sets out how the Council will ensure that pupils who have SEN, but who do not have an EHCP, will receive a school place. The protocol says that if it is not possible to place a child via the normal school admission process then the Council will ask a school to admit a child. It will name a school and give the school three school days in which to respond.
18. For children who have an EHCP the procedure is different. Here the Council says its role is to identify a suitable placement for the child that can be named on their EHCP. This can take account of parental preference, but the Council is not duty bound to follow this.
19. For children out of school, who are being assessed for an EHCP but who do not have a school place, the Council has an Individual Pupil Support (IPS) service. The Council describes the IPS as offering an “interim education”. The Council says the initial offer made by the service is to offer three hours a week one-to-one tuition. It will then review that service within six weeks. After which time it may offer more support. The Council says that this takes account that one-to-one support is intensive. Also, that it must take account of pupil’s needs and their engagement with learning. The Council wants the child to “remain fully engaged with their education”.
20. During the events covered by this complaint the Council only referred pupils to the IPS if it had been unable to identify a school place for a child, having consulted schools. However, its policy has since changed and now it says that as soon as it has decided a child should be assessed for an EHCP it will alert the IPS service.

Ombudsman approach to complaints involving the Human Rights Act

21. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to education. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
22. The Ombudsman’s remit does not extend to making decisions on whether a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.

Chronology of key facts

23. Between September 2021 and July 2022 E was in year 6 of her education. E has SEN having a global development delay. She experiences difficulty with communication and when frustrated can self-harm.
24. During 2021 Mr D and his family lived in Wales. E attended a specialist school for children with SEN being taught in small classes. To aid E’s education her local council in Wales provided her with an Individual Development Plan (IDP). The Welsh Government describes an IDP as a legal document which describes a child or young person’s additional learning needs, the support they need, and the outcomes they would like to achieve. All children with additional learning needs receive an IDP irrespective of the severity or complexity of their needs.
25. Mr D first made enquiries about moving to the Council’s area in summer 2021 and he has provided a copy of an email sent directly to a school which shows this. But the Council says the earliest record it has of Mr D contacting it to say he was moving to its area is an email he sent in mid-December 2021 addressed to its SEN service. That said he would be moving to the Council’s area in January 2021 and his daughter required a ‘special needs school’.
26. In early exchanges with that service, Mr D asked the Council to provide him with a list of such schools with vacancies. He wanted to research them to consider which would provide the best fit for E’s needs. It is evident from those early exchanges the Council assumed E had an EHCP. The Council told Mr D that once it had confirmation he had moved and proof of his new address and his EHCP paperwork, that his case would be allocated to a SEN caseworker who would contact him about a school placement.
27. Mr D completed his move in early January 2022. By mid-January Mr D had sent information to the Council confirming his address and showing that E had an IDP when at school in Wales. The Council said that it regarded the IDP as equivalent to an EHCP and so it would follow the procedure outlined above in paragraph 11 above.
28. It took around 10 days for the Council to take further action. It has explained this was because E’s former local authority was not one recognised on its IT system as it is a Welsh local authority. Once it registered E’s case the Council began consulting schools in its area, sending them a copy of E’s IDP for their records. So, this was at the end of January 2022.
29. No local school said they were willing to offer a place to E. The Council says this was because the IDP was not considered sufficiently detailed for schools to say if they could meet her needs. The Council says it could not insist a school accept E’s placement as it would only have the power to do this if a school was named on an EHCP or under the provisions of its Fair Access Protocol.
30. In mid-February 2022, the Council decided to begin the process of assessing E for an EHCP.
31. As part of the assessment process, in mid-March 2022, the Council referred E to a specialist team that advises on children’s speech and language therapy needs. Mr D did not receive the invite to that assessment as the invite was sent by text and went to an unrecognised telephone number. The specialist service decided that it could advise on the case using information contained in E’s IDP. I have noted the mobile phone number on the Council’s records appears the same as that given by Mr D to the Council in an email in January 2022.
32. At the end of March 2022, the Council decided to refer E to its Individual Pupil Support (IPS) service as she remained out of school. The IPS service then contacted Mr D in April 2021. Their contacts said they could offer one-to-one tuition to E for up to three hours a week for six weeks. The Council said it would review this service “every six weeks”. During email exchanges with Mr D the Council clarified there was “the potential” for it to increase these hours.
33. Mr D rejected this offer. He explained that he had teaching skills and could continue to support E at home. What he wanted instead was “full time schooling” for E in an “appropriately resourced environment” for children with SEN.
34. The Council completed a draft of E’s EHCP in April, proposing she attend a specialist school. This was finalised in June 2022. I note that in March 2022 Mr D contacted the Council to say he had been in contact with that school and it was willing to assess if it could meet E’s needs. The Council did not reply directly to that suggestion.
35. E did not start at the school until September 2022. The Council says this was because the provision identified in the EHCP could not be arranged sooner. In particular, the EHCP says that E will need one-to-one classroom support and the Council says the school needed to recruit a support worker.

Mr D’s complaint to the Council

36. By late March 2022, frustrated with the time taken to secure a school place for E, Mr D made a complaint to the Council. The main issue raised by Mr D in his complaint was the delay in finding a school place for E. But he also mentioned that he had missed the appointment for E’s assessment for speech and language needs because a text message was sent to the wrong phone number. Also, that E’s lack of access to education potentially impacted on medical services she received including access to appropriate medication. Mr D contrasted unfavourably his experience of trying to secure education for E in the Council’s area, from when the family had moved to Wales.
37. In its reply, sent at the end of April 2022, the Council explained the delay of around 10 days in finding education for E because its IT system had not recognised her previous Welsh local authority. But it defended overall the time taken to assess E’s needs as part of the EHCP process. It also said Mr D could receive support via the IPS in the interim.
38. The letter also cautioned Mr D that the Council could place limitations on his contact with the Council, referencing its unreasonable customer behaviour policy. The Council referred to this as it said Mr D’s communications used a “threatening and aggressive tone”. When I asked the Council about which of Mr D’s statements it considered met this description it referred to several comments Mr D made which implied he may take legal action or that referred to its actions being a “shocking disgrace”. It also referred to comments where Mr D said he believed the Council’s actions were harming his daughter and breaching her human rights. He referred to collecting evidence including via social media.
39. Mr D made further representations in response to the Council. In his comments Mr D challenged that he had ever been threatening or aggressive in his communications. He continued to express dissatisfaction at the time it was taking to obtain a school place for E. He said that he could provide a lot more information from her time in school in Wales to help in arranging a place for her. He also explained why he considered the suggested IPS provision insufficient to meet her needs.
40. I saw no evidence Mr D received any further reply from the Council in response to these further communications.

Findings

41. Neither Government guidance nor Council policy specifically address the circumstances of a child in E’s position who makes a cross-border move from Wales to England and who has an IDP. A key difference between the approach of the two governments is that in Wales an IDP is provided for all children with SEN. It does not have a direct English equivalent, because only a minority of pupils in England with SEN have an EHCP.
42. This means that when a child with an IDP moves into England they may, or may not, have needs that require them to have an EHCP. This then has implications for what process the Council and parent should follow to ensure a child receives a school place. I consider this can only be a decision that is taken on a case-by-case basis. Because sometimes it will be apparent the child has a level of needs that falls short of requiring an EHCP. While in other cases it will be evident a child will need an EHCP.
43. I do not find the Council approached E’s case understanding the basic differences between the English and Welsh systems of education for children with SEN. Instead, it assumed an IDP was equivalent to an EHCP.
44. While this was a fault, I do not consider on its own this was detrimental to the support E received. Because I am satisfied the facts in this case show that E required an EHCP. Further, from the outset, Mr D explained his view that his daughter needed a special school which was strongly suggestive of the same.
45. I also find no fault in the time taken for the EHCP to complete which was within the statutory timescales.
46. I also consider the Council was correct, in January 2022, to identify that paragraphs 9.157 to 9.162 of the Code applied to the circumstances of E’s move into its area. This is as summarised in paragraph 11 above.
47. However, the inescapable finding in this case is the Council was then at fault for failing to follow that guidance. It says clearly that when a child moves into an area with an EHCP, and it is impracticable because of distance for the child to continue attending the same school, the Council must find the child a temporary place elsewhere. The word ‘must’ is emphasised in the guidance.
48. The Council failed to do this. It consulted schools but left it to the schools to determine if they wished to admit E. I accept the schools wanted a more detailed picture of E’s needs than the IDP presented. But I do not consider this should have proved fatal to the Council securing a temporary school place for E while it undertook the EHCP assessment.
49. I recognise this was not a straightforward scenario for the Council. I also note its comments explaining it has limited powers to ‘force’ a school to accept a pupil. But the Council could have invoked the Government guidance in its negotiations. This way it would have begun from the position that it had to secure a temporary placement for E and could reasonably expect schools to co-operate. I consider taking this approach would have reflected the clear intent of the statutory guidance. While I do not underestimate the difficulties sometimes encountered in negotiating with individual schools, this was not something which could be left entirely to their discretion.
50. Alternatively, the Council could have considered invoking the Fair Access Protocol. This covers pupils who have SEN, but who do not have an EHCP and are not in school. I acknowledge the protocol only covers mainstream schools. And neither Mr D nor the Council considered a mainstream school likely to be a good fit for E. But it is still something that could have been considered in the absence of the Council securing a temporary place at a specialist school.
51. Further, there is the duty on local authorities to secure education for children who are not in school for reasons of illness, exclusion or ‘otherwise’. Government guidance makes clear the expectation that a child should not be without full time education for more than 15 working days unless their individual circumstances mean they cannot be expected to access that. If the Council had no other way to meet E’s needs, then it should have made an early offer of home tuition.
52. I recognise the Council did offer E home tuition through its IPS service but only after she had lived in its area for three months and out of school for a term. I also consider that offer inadequate. I recognise that home tuition is more intensive and that for children with SEN it may be good practice not to assume they will cope with a full-time curriculum or equivalent straight away. But even the best level of service the IPS could have offered to E during her summer term would have fallen short of the full-time education she had a right to receive, given the terms on which it was offered.
53. In summary therefore I consider the Council was at fault for failing to meet E’s education needs between January and July 2022. I consider below the injustice this caused.
54. Before I do so I will address certain other matters raised in Mr D’s correspondence. First, there is the question of when he first told the Council he was moving into its area. He believes it was before mid-December 2021 as recorded by the Council. I have decided I do not need to make further enquiries into this matter. Because I consider even if Mr D’s first contact was not until mid-December (something he disputes) the Council had enough notice to try and find E a school place before the end of January.
55. Second, there is the advice given to Mr D at the outset. It was fault for the Council to say in mid-December that it could not begin to help him until he had completed his move into its area. Further, the Council told me in reply to my enquiries that for pupils who do not have an EHCP parents can apply for a school place up to half a term beforehand. I consider the injustice caused by this unnecessary delay in the Council taking forward E’s case below.
56. Third, there is the suggestion Mr D was threatening and aggressive in his correspondence with the Council. I find Mr D was blunt in some of his comments to the Council. Such forthrightness might be considered rude in some instances. But at no point was Mr D ‘threatening’ any more than he intended pursuing his complaint or taking legal action if education provision for his daughter was not made. He made clear his dissatisfaction with a situation which he considered, with good reason, was detrimental to his daughter. At no point did he ‘threaten’ any individual at the Council or make any personal attacks on individuals (questioning only the time given to his daughter’s case). I do not consider it was necessary or appropriate therefore for the Council to refer to its unreasonable behaviour policy. Although I note no sanctions were imposed on Mr D and so any injustice caused to him by this matter was limited.
57. Fourth, leading on from the above, Mr D has made references to the Council denying his daughter her human rights. As I explained above, we are not a body that makes a ruling on such matters, as it is for the Courts to decide where human rights are breached. However, it is not unreasonable a parent refer to their child’s right to education if they believe a council is not doing enough to help them secure that education. It is something the Council should itself always be mindful of when it knows children are not in school despite the parents wanting them to be.
58. I turn next to the injustice caused to Mr D and to E. First, there is the loss of service to E. She was out of school for two terms at an important time in her education as she prepared for secondary school.
59. Second, there is distress. Mr D has explained that in the nine months E was out of school he did his best to meet her education needs at home. But she suffered isolation being out of the school environment and did not understand the reason why she could not go to school. Mr D says in turn this affected some of the behaviours E displays when she is anxious, particularly behaviours which are self-harming. Mr D considers despite his best efforts therefore, the home education he provided was no adequate substitute for E going to school.

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Agreed action

60. The Council accepts the findings set out above. To remedy the injustice caused to Mr D and E it has agreed that within 20 working days of a decision on this complaint, it will:
• apologise to Mr D accepting the findings of this investigation;
• pay Mr D £2700; £2400 is to recognise the loss of service to E while she was not in school and a further £300 to recognise the distress caused to Mr D as a result of the events described.
61. The financial remedy takes account of the Ombudsman’s published guidance on remedies. This explains that where a child misses school because of fault by the Council we consider a tariff of between £200 and £600 a month appropriate to remedy that injustice, dependent on factors relevant to an individual case. For example, at what stage the child is at in their education or whether any alternative provision was made to make-up some of the shortfall in missing education. I considered in this case a figure of £400 a month appropriate to reflect E’s age and that some limited offer of home tuition was made by the Council, but only after she had been out of school for three months and only for a limited provision. I also disregarded the holiday periods when E would not be in school.
62. The Council has also agreed to learn wider lessons from this complaint. I welcome that it has already changed its process for referrals to its IPS service, recognising it should have made an offer of home tuition to Mr D much sooner in this case. Within 20 working days of a decision, it has agreed to provide us with evidence that it has arranged (or is in the process of arranging) a briefing for frontline SEN staff, to cover:

• the triaging of cases where pupils with SEN move into the county from other parts of the United Kingdom outside England. This is to help understand basic differences between SEN provision in other parts of the United Kingdom to better identify for which pupils the Council will need to undertake the EHCP assessment process;
• a reminder of our expectation that where the SEN Code of Practice places a requirement on the Council to act (for example with use of words such as shall or must) that it should be able to demonstrate it has done all that might be reasonably expected to fulfill that expectation;
• the circumstances when it is appropriate to refer complainants to the unreasonable customer behaviour policy.

63. In addition, the Council has agreed that within three months it will review its current policy to support pupils with SEN who are not enrolled in school through its IPS service. My concern is the present arrangements are unlikely to provide for a full-time education or equivalent for such pupils and so fall short of the legal requirement the Council has when providing alternative provision. In particular, the review will consider how the Council can be more flexible about reviewing the three-hour one-to-one provision at the earliest opportunity if a child is engaged with that. It should not have any policy that it only reviews that offer after six weeks.

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Final decision

64. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mr D and E. The Council has agreed action that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman