Summary: Mrs Y complains on behalf of Miss X about the way in which the Council managed her family’s move into the Council’s area in April 2023. She said that because of the Council’s failures the family suffered avoidable distress and the children missed education and crucial social services support. We found the Council was at fault in how the Council managed the social care and special education needs support for the family. The Council agreed to our recommendations on what it should do to remedy the injustice its actions caused Miss X and her family.

The complaint

1. Mrs Y complains on behalf of Miss X about the way in which the Council managed her family’s move into the authority’s area in April 2023.
2. Mrs Y also says the Council failed to:
• quickly allocate an SEN case worker to Miss X’s children;
• accept draft Education, Health and Care (EHC) Plans from the previous Council;
• attend a transfer meeting with the previous Council;
• secure social care support for the family; and
• continue the children in need procedure for Miss X’s children.
3. She says that because of this the children missed social care and special educational needs provision they were entitled to. It also meant that, for six months, Miss X had to drive her children to school back in the old Council’s area.
4. Mrs Y would like the Council to:
• apologise and accept responsibility for its actions;
• make service improvements to ensure this does not happen to another family; and
• secure the social care support for the family immediately.

Back to top

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. 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.
8. 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)
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

10. As part of the investigation, I have:
• considered the complaint and Mrs Y's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
11. Mrs Y and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

EHC Plans

12. The Children and Families Act 2014 (the Act) sets out the framework for supporting special educational needs (SEN). The Act is supported by Special Educational Needs and Disabilities Regulations 2014 (the Regulations) and the Special Educational Needs Code of Practice 2015 (the Code). These contain detailed guidance to local authorities about how they provide support for children and young people with SEN.
13. An EHC Plan is a legal document which sets out a description of a child's special educational 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.
14. The Council must respond to all requests for an EHC Plan. It must decide whether an assessment is needed within six weeks of receiving the request. The whole process from the point of request to the Council issuing the final EHC Plan must take no more than 20 weeks.
15. Where there are exceptional circumstances, it may not be possible for the Council to meet the timescales. The Council should tell the child’s parent or the young person of the reasons for any delays.
16. The Council can only issue an EHC Plan after a child or young person has gone through the assessment. At the end of that process the Council must decide whether to issue a Plan or not.
17. If the Council decides to issue a Plan, it must first issue a draft for the parents or young person to consider. The Council does not have to provide exactly what the parents request, but it should be able to explain why the EHC Plan meets the needs of the child.
18. The Ombudsman cannot investigate the Council’s decision whether to conduct an assessment, and the content of the EHC Plan, as these are appealable to SEND Tribunal.
19. The Ombudsman can look at delay in the assessment and creation of an EHC Plan as well as failure by the Council to deliver the provision within an EHC Plan, as long as they are not connected to, or a consequence of, an appeal.
20. When a child moves to another Council, the new Council should inform the child’s parents within six weeks of receiving the plan if it proposes to make a new EHC needs assessment or review the EHC Plan. (Special Educational Needs and Disability Regulations 2014) 

What happened

21. Miss X has three children, S, B and C. They all have special educational needs (SEN) and the Council was processing their EHC Needs Assessments. All three children are also children in need, which means they are more vulnerable than other children that may have needed an EHC Plan.
22. In mid-April 2023 Miss X attended a Child in Need (CIN) meeting at her children’s school and she told the professionals from the old Council that her family were moving to the Council’s area. The family moved within five days of that meeting.
23. In early May Mrs Y made a complaint to the Council about the lack of support Miss X received after she moved.
24. In May, the old Council transferred the EHC Needs Assessment documents and draft EHC Plans for S and B, but not for C. The old Council also asked the Council to assess the family for social support. At the end of the month, the Council chased the old Council for C’s documents and the old Council sent them on the same day.
25. Miss X sent her comments on B’s draft EHC Plan and told the Council which schools she wanted it to consult with. Within a few days the Council told Miss X it had received draft EHC Plans for S and B. Soon after this an officer contacted Miss X and told her:
• they were the EHC Plan case worker for one of the children;
• and asked her to confirm the schools she would like the Council to consult with.
26. The following day the Council told Miss X that the old Council did not forward any draft EHC Plans for S and B, and she would have to apply for school places for the children using the normal admissions form.
27. Around this time Mrs Y submitted a complaint to the Council. She said that:
• the children still did not have suitable schools to attend in the Council’s area;
• the Council took a month to assign an EHC Plan case worker to the family;
• the Council told Miss X the old Council did not send any EHC Plans for the children, having confirmed the day before that it had them.
28. Within six days the Council assigned a social worker to work with the family and carry out a Child and Family Needs Assessment.
29. In June 2023 the Council attended a CIN transfer meeting. At the end of the month Mrs Y made a further complaint to the Council. She said that:
• the family had been through a lot, and Miss X had to fight to have her children assessed for EHC Plans;
• the Council was contributing to the delay by deciding to re-assess the children, even after there was SEND Tribunal order and the children should have had final EHC Plans issued within 11 weeks from the decision.
30. In the same month the Council began a Carer's Assessment and completed it within two months. The Council wanted to identify if it needed to implement direct payments for S and B.
31. At the end of July the Council issued its response to Mrs Y’s complaint. It said that:
• it got incorrect legal advice, and based on this it decided to reject the old Council’s draft EHC Plans for S and B. This was an error and the Council apologised and offered £550 for any education the children may have lost;
• it recognised there were also delays in the Inclusion Team’s involvement, apologised and offered a further £100;
• the other aspects of her complaint were not upheld and she could contact the Ombudsman if she disagreed with the outcome.
32. In mid-August 2023 Mrs Y contacted the Council and complained there were no social or educational services for the family in the area. She also asked the Council to assess if the children met the criteria to be supported by the Council’s Disabled Services. The Council completed the assessment two days later and decided the children did not meet the criteria for support.
33. Throughout September Mrs Y continued to contact the Council asking for support and to put services in place for Miss X’s family. At this point, the Council presented the direct payments request to the panel.
34. In summer 2023 the Council issued S’s and B’s draft EHC Plans, with the final Plans issued in late August 2023. The Plans named a local mainstream primary school for both the children. Miss X considered the school was not suitable to meet S’s and B’s needs and she appealed to the SEND Tribunal.
35. The Council asked its panel to consider if the family could get direct payments at the end of September.
36. In mid-October 2023 the Council:
• involved Occupational Therapy department to see if they could support the family;
• assigned an officer to support Miss X with finding and accessing a leisure centre for the children; and
• met with Mrs Y and Miss X to see if there was anything else the Council could do to support the family.
37. In early December 2023 the Council awarded direct payments to Miss X’s family, but the team working with her family did not find this out until 14 days after the decision was made. But it took another three months for the Council to begin the recruitment process of personal assistants. Meanwhile, the Council funded holiday activities for the children.
38. In November 2023 Miss X continued to be unhappy about the support her family received from the Council and Mrs Y complained on her behalf to the Ombudsman.

Analysis

EHC Plans for S and B

39. The family moved into the Council’s area in April 2023. The Council’s records show that it assigned a caseworker to the family within six days. The Council accepted this is not in line with its policy that says it should be done within five days and is fault. Further, the caseworker did not contact Miss X until roughly four weeks later. We consider this delay to be further fault.
40. We welcome the Council’s initiative in training its staff and reminding them the council should assign and tell the family about their caseworkers within five working days.
41. Mrs Y complained the Council failed to accept the draft EHC Plans from the old Council, and this caused further delays in completing them and the children accessing the support they needed.
42. There is no requirement for the Council to accept the draft EHC Plans, however the Council should have told Miss X within six weeks of getting the transfer about what it planned to do. This did not happen and is fault.
43. This is the statutory process. However, before moving into the Council’s area Miss X had a successful appeal and the SEND Tribunal ordered the old Council to issue EHC Plans for S and B. This means the new Council did not have 20 weeks to complete the process, but instead had to issue them within 11 weeks of the Order.
44. The Council accepted that because of miscommunication between its departments it relied on wrong legal advice and believed it had 20 weeks to issue the final EHC Plans for S and B. This is fault.
45. This caused Miss X avoidable distress and frustration as the Council effectively began a new assessment for S and B and caused delay in completing their EHC Plans. It also caused injustice to S and B, who were already vulnerable and needed support to achieve best to their abilities. It meant they could not access education and the services crucial to their development named in a draft EHC Plan.
46. Because the Council decided not to accept the old Council’s draft EHC, it refused to consult with Miss X’s preferred schools to see if they could meet the children’s needs. Instead, the Council asked Miss X to apply for school places for S and B using the Council’s Fair Access Protocol. This protocol is set to help secure a school place for children who were considered hard to place and didn’t get a school place through the normal admissions process. This is also fault, arising from the wrong legal advice the Council relied upon.
47. Additionally, the EHC Plan case worker asked Miss X which schools she wanted the Council to consult, which made her believe this is what the Council intended to do. However, the following day the Council changed its position and said that she had to use the Fair Access Protocol. We consider this was fault, and caused Miss X avoidable confusion about what was going to happen.
48. It is likely this caused further injustice because the family could not access education and services in the area they lived in. As a result, Miss X had to drive them to the school they attended before they moved, which meant a four hour commute each day.
49. The Council has accepted this and offered Miss X £550 to recognise the impact its decision had on the family.

June 2023 CIN transfer meeting

50. We have not found fault with the Council, as the meeting minutes show that a representative attended the meeting and told the old Council the Council had completed its Child and Family Assessment.
51. This is supported by the complaint Mrs Y made to the Council, in which she confirmed the Council’s social worker and SEN caseworker attended the meeting.
52. The Council’s records show that Mrs Y and Miss X asked the Council’s representative to attend another meeting with the old Council. They wanted to talk about the educational support for all three children, but the Council said it would not attend. The Council explained it considered it was not at fault an SEN worker from the old Council did not attend the meeting in June 2023. We agree the Council was not at fault. It attended the transfer CIN meeting of June 2023 and it then took over the CIN process, which is what the law required it to do.

EHC Plan for C

53. Generally, we expect councils to follow the timescales set out in the Code which is statutory guidance. We measure a council’s performance against the Code and we are likely to find fault where there are significant breaches of timescales.
54. Miss X asked for C’s EHC needs assessment in April 2023. The family then moved into the Council’s area, and the Council was not aware of the assessment request until 26 May 2023. The Council decided to carry out an assessment and issued a decision letter in early June 2023, so it decided this within the six weeks the Code allows councils.
55. The Council then failed to complete the process and issue a final EHC plan within 20 weeks from the date of Miss X’s request. It should have issued C’s final plan around mid-September 2023. The final EHC plan was not available until March 2024. Even considering the possibility that Miss X may have asked for an extension of a couple of weeks to comment on the draft plan, this was still a delay of seven and a half months which is fault. It had an adverse impact on Miss X because it delayed her right of appeal to the SEND Tribunal and caused avoidable distress and time and trouble chasing officers up. It also meant there was a loss of SEN provision for C because she could not have received the tailored provision on an EHC plan yet to be finalised.
56. The records suggest Miss X and Mrs Y were chasing officers in the SEN team many times for updates, that they did not always get substantive replies and any replies did not give meaningful updates. Our view is the Council should have given them a rough timescale for when it would issue C’s draft EHC plan. The failure to give a rough time frame was poor communication and was fault.
57. The Council accepted that the service did not always respond to Miss X and Mrs Y within the expected time frame. It offered to pay £100 to recognise the distress this caused them. We consider this is not a suitable remedy, as the level of uncertainty Miss X experienced would have been high, considering the Council was dealing with all three children. Because of this, we recommend the Council pays £200 to Miss X to recognise the avoidable distress its poor communications caused her.

Secure social care support and CIN process after the move

58. Mrs Y said the Council did not continue with the CIN process after the family moved into its area. The Council’s records show that it held CIN review meetings in September and October 2023 and March 2024. We are satisfied that the Council continued the CIN process and kept the support it offered to the family under review.
59. However, the Council accepted that there was a delay in putting services in place for Miss X’s family, and we consider this to be fault. The Council said that this was partially because of staff changes, which were unavoidable. This may be true, but the family moved into the Council’s area in late April 2023 and some of the referrals, such as Occupational Therapy, were not made till October 2023. This is six months after the move, where the Council was responsible for promoting the children’s welfare but delayed doing so.
60. The social care records also show that Mrs Y and Miss X considered the Council’s disability team should be supporting the family, as this was the team that worked with the family in the old Council.
61. In summer 2023 the Council carried out an assessment and decided that the children did not meet the requirements to be supported by its disability team. We have not seen any evidence to suggest there was fault in how the Council considered this and because of this we cannot question the Council’s decision.

Back to top

Agreed action

62. Within one month of the date of the final decision statement, the Council will:
• apologise to Miss X and for the delays in finalising the EHC Plans for S, B and C and the distress and frustration this has caused them. The Council should refer to our guidance on making an effective apology;
• pay her £650 to recognise the education the children missed on the days that she could not drive them back to their school that was two hours away. This is instead of the £550 the Council offered her;
• pay her £400 to recognise the avoidable distress and frustration she experienced during the time she had to drive her children to a school two hours away;
• pay her £300 to recognise the avoidable frustration and uncertainty the Council’s delay in making social care referrals and securing the provision caused her; and
• pay her £200 to recognise the avoidable frustration and uncertainty she experienced because of the delays in the Council’s responses to her and Mrs Y’s emails. This is instead of the £100 the Council offered her.
63. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

64. The Council was at fault in how it supported Miss X and her family after they moved into the Council’s area in April 2023. The Council agreed to our recommendations and our investigation is now complete.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman