Summary: the Council followed the correct procedure before amending Mrs M’s son B’s Education, Health and Care (EHC) Plan. It is not the Council’s fault the resource provision specified in the Plan could not admit B.

The complaint

1. Mrs M complains about the Council’s failure to secure a place for her son, B, at the ‘integrated resource’ named in his Education, Health and Care (EHC) Plan. Mrs M complains about the uncertainty, stress and inconvenience this caused, and the subsequent disruption to B’s education.

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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. 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)
3. We cannot investigate a complaint once someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions concerning special educational needs. We refer to it as the SEND Tribunal in this decision statement.

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How I considered this complaint

5. I have considered information provided by Mrs M and two Councils. I invited Mrs M and the Council to comment on my draft decision.

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What I found

6. There are two councils involved in this complaint, Barnsley Metropolitan Borough Council and Sheffield City Council. I shall refer to them as ‘Barnsley’ and ‘Sheffield’. Mrs M has made complaints to both Councils. This statement concerns Sheffield.
7. Mrs M lives in Sheffield. Sheffield maintains an Education, Health and Care (EHC) Plan for her son, B. B was due to transfer to secondary school in September 2023. Mrs M wanted him to attend an ‘integrated resource’ at a nearby school. The school is in Barnsley. Sheffield completed a ‘transition review’ and issued an amended EHC Plan on 3 February 2023. The Plan said B would attend the ‘integrated resource’ at the nearby school.
8. Shortly after Sheffield issued B’s EHC Plan, it became apparent something had gone wrong and there was no place for B at the integrated resource.
9. Mrs M complained to both Councils. The Councils blamed each other.
10. The school agreed to admit B as a ‘mainstream’ pupil but was unable to offer him a place in the ‘integrated resource’. Sheffield agreed to fund support for B’s special educational needs as a mainstream pupil at the school.
11. Unhappy with the outcome, Mrs M complained to the Ombudsman. She wanted to secure suitable support for B, whether at the ‘integrated resource’ or elsewhere. She wanted the Council responsible for the mistake to apologise and take steps to ensure similar problems do not happen again.
12. Things did not work out for B as a mainstream pupil. The school held an emergency review of his EHC Plan in October 2023. Mrs M asked Sheffield to name a different school. The Council declined. Mrs M appealed to the SEND Tribunal. A hearing is scheduled for December 2024.

Reviewing Education, Health and Care Plans

13. The procedure for reviewing and amending an Education, Health and Care Plan is set out in legislation and Government guidance.
14. The council responsible must review and amend, where necessary, a child’s EHC plan before 15 February in the calendar year of the child’s transfer to secondary school.
15. The law says that councils must name a parent’s preferred school in their child’s Plan, so long as the school is suitable and the child’s attendance would not be an inefficient use of resources. (Children and Families Act 2014, section 39)
16. A school named in section I of an EHC Plan must admit a child. (Children and Families Act 2014, section 43)
17. Councils must consult with schools before naming them in a child’s Plan. Where the school is maintained by another local authority, the council must also consult that authority. (Children and Families Act 2014, section 39)
18. Schools and councils should respond to consultation within 15 days. (SEND code of practice, paragraph 9.83)
19. The council responsible for maintaining a child’s EHC Plan decides which school the child will attend.

What went wrong?

20. An ‘integrated resource’ offers specialist provision within a mainstream school setting. An ‘integrated resource’ is not a school in its own right.
21. Consultations for places in ‘integrated resources’ are complicated, and both Councils operate procedures to ensure places are allocated fairly. In response to my enquiries, Barnsley acknowledged that it did not follow its procedures in this case.
22. Neither the school nor the Council (Barnsley) responded to the consultation within 15 days. Following a meeting with Mrs M and G, the school responded to confirm it could meet B’s needs. When chased for a response, Barnsley forwarded the school’s response. It should have referred the case to a Panel for consideration.
23. The mistake came to light on 9 February. Sheffield had issued B’s EHC Plan and sent a copy to the school. This appears to have sounded alarm bells at the school, since the school contacted Sheffield to explain that places in the ‘integrated resource’ were commissioned by Barnsley Council. The school suggested the Councils liaise to discuss B’s case.
24. Email correspondence provided by the Councils shows they discussed B’s case. Discussion appears to have focussed on whether Sheffield had followed the correct procedure. The Councils did not resolve the problem.

Who was responsible?

25. Sheffield consulted both the school and Barnsley before issuing B’s EHC Plan. It received a positive response from the school, and a copy of the school’s positive response from the Council. Sheffield carried out all the administrative actions required.
26. Barnsley’s failure to follow its procedures when responding to consultation from Sheffield meant Barnsley gave the ‘wrong’ response. Barnsley should have said the case needed to go before a Panel for a decision.
27. The response from Barnsley does not appear to have been a formal statement of the Council’s position on Sheffield’s proposal to name the school in B’s EHC Plan. With the benefit of hindsight, it might have been advisable for Sheffield to have sought further clarification. After all, both Councils have resource provision of their own and know the complexity of allocation arrangements.
28. Nevertheless, ultimate responsibility for the response lies with Barnsley. Barnsley’s failure to follow its procedures appears to have been the cause of the problem.
29. Mrs M might legitimately ask whether the Plan issued by Sheffield created a legal entitlement to a place in the integrated resource for B. The Ombudsman cannot determine questions of law. I think it is unlikely because of the way the Plan was worded.
30. But it was clearly Sheffield’s intention B should have a place in the integrated resource when it issued the Plan. In its complaint responses, Sheffield has acknowledged it should have written B’s Plan differently. The Council should have named the school in section I and specified the support from the integrated resource in section F. However, this would not have avoided the problems, and would not have guaranteed B a place in the integrated resource since it was the fault by Barnsley which ultimately meant there was no place for B at the integrated resource. I mention it here for the sake of completeness.
31. The school agreed to admit B as a mainstream pupil and Sheffield agreed to fund the special educational provision in section F of his Plan. There is no fault insofar as Sheffield delivered what it was legally required to do by B’s Plan, even though this was not what the Council envisaged.
32. Regrettably, things did not work out for B as a mainstream pupil. Sheffield held an emergency review of his EHC Plan in October 2023 and began the search for a different school. Unable to secure a place at her preferred school, Mrs M has appealed to the SEND Tribunal. In the meantime, Sheffield is providing a bespoke package of tuition and alternative provision.
33. I was very sorry to hear from Mrs M that the disruption to B’s education is having a significant impact on him and his mental health. I understand the search for a suitable school with space for B is proving difficult, and the Tribunal hearing is not scheduled until December 2024. This is no doubt a source of considerable worry and stress for the whole family. Mrs M told me she is exploring whether B will be able to repeat the whole of Year 7.
34. I record this here to illustrate the severe consequences for Mrs M and B which followed the failure to secure a place at the integrated resource. I am, however, unable to comment further since Mrs M’s appeal to the SEND Tribunal takes the complaint out of the Ombudsman’s jurisdiction.

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Final decision

35. I have completed my investigation. The Council followed the correct procedures before amending B’s EHC Plan. It is not the Council’s fault the resource provision specified in the Plan could not admit B.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman