Summary: The Council failed to consider whether to review a child’s Education Health and Care (EHC) Plan, or reassess his EHC needs when he moved to its area. The Council failed to provide him with an education for some months. It also did not deal with Ms B’s requests and contact, or her complaints to it properly. This caused the family distress and frustration, and meant that the child missed out on education. The Council has agreed to remedy the injustice it caused.

The complaint

1. Ms B complains the Council:
• Failed to follow the correct procedure for transferring her son’s EHC Plan and reassessing his needs when they moved to the area;
• Did not provide an appropriate education for her son in accordance with his EHC Plan when he had no school place;
• Did not always respond to her messages and contact, and did not keep her informed of its actions so that she did not know what the Council intended to do; and
• Failed to follow the complaints procedure which meant that she had to complain repeatedly.
2. Ms B says that the Council’s shortcomings caused her and her family significant distress and uncertainty. Her son missed education and his mental health deteriorated. She was put to significant trouble trying to reach officers and to progress matters.

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The Ombudsman’s role and powers

3. 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)
4. 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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What I have and have not investigated

5. There is a right of appeal to the Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.
6. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
7. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
8. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
9. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 
• delays in the process before an appeal right started;
• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal.  
10. Ms B’s right to appeal the Council’s decision on the school and SEN provision set out in her son’s plan arose when the Council issued the final EHC Plan on 4 July 2023. Ms B has appealed these elements of the Plan. I have not investigated Ms B’s complaints about provision and the Council’s actions from that date because these are a consequence of the elements of the Plan she has appealed.

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How I considered this complaint

11. I considered the information provided by Ms B and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement and I have taken these into account before issuing this final decision.
12. 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

The law and guidance

EHC Plan

13. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
15. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) (the Code)
16. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
17. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 
18. 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 make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)  
19. The Code says that the new authority may, on the transfer of the Plan, bring forward the arrangements for a review and may consider a new EHC needs assessment. The new authority must tell the parent within six weeks of the transfer, when it will review the Plan and whether it will make an EHC Needs assessment.

Alternative Education Provision

20. 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). We refer to this as section 19 or alternative education provision.
21. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
22. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
23. The DfE non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
24. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

What happened

25. Ms B’s son, K has special educational needs. K has an EHC Plan naming a school for him to go to. In July 2022, Ms B and her son moved from that area into Leicester City Council’s area. It was too far for K to go to the school named on his Plan. The City Council issued a draft EHC Plan and Ms B responded to that. The City Council then decided to reassess K’s needs. It did not complete the assessment and it did not issue a final EHC Plan. We have investigated the City Council’s actions separately.
26. In December 2022, Ms B and her son moved into the County Council’s area. This investigation is about the County Council’s actions. It was still too far for K to go to the school named on his existing Plan. The County Council says that in November, Ms B told it she was moving into its area within a few weeks. The County Council received notice that K had moved into its area on 17 February, although Ms B tells me that she received an email from the Council about this in January.
27. In March, Ms B asked the County Council when it was going to issue the final EHC Plan and where K would go to school. By this stage he had not been in school since September 2022. The County Council consulted with three schools based on the City Council’s draft EHC Plan. However, Ms B told the Council she had raised several concerns with the City Council about the draft and she was not happy for the County Council to consult schools on that basis.
28. In mid-June 2023, the Council issued a new draft EHC plan. It also updated Ms B on what it had done so far to arrange K’s education. The County Council consulted Ms B’s preferred school and arranged for K to have some tutoring because he was not in school. The tutoring of 4.5 hours per week started on 28 June. Ms B says that K found it hard to engage with the tutors and the provision was not suitable, nor was it what was set out in K’s existing EHC Plan.
29. The County Council issued the final EHC Plan on 4 July naming a mainstream school and setting out the support K would have there. Ms B says the school told her that it could not take K and could not meet his needs. Ms B started mediation so that K could have a more suitable school. During mediation Ms B asked the Council to re-assess K’s special educational needs.
30. On 20 October, Ms B appealed the EHC Plan on the basis that the provision was wrong and she disagreed with the school the Council had named. The Council received a new educational psychologist report in mid-November. Ms B says the Council agreed that the school named in K’s Plan could not meet his needs. Ms B first chose a different school but then decided against that. The County Council issued a new final EHC Plan in February 2024 naming a special school that Ms B had chosen. K now goes to the special school named in his Plan.

Communication and complaint handling

31. Throughout this period, Ms B contacted the Council several times asking what education it was arranging for her son. Ms B did not always get a response to her contact.
32. Ms B made several complaints to the Council. The first in May 2023 was that she had contacted the Council several times but the Council had not progressed K’s EHC Plan nor any educational provision, and had not always responded to her contact chasing progress on these issues. The Council contacted Ms B following her complaint and issued the draft and final Plans. It also arranged some home tutoring. Ms B chased the Council for a response to her complaint. The Council did not respond to Ms B’s complaint but told her she should contact the case worker direct.
33. Ms B complained to the Council again in July 2023. She complained that the Council had not followed the legal process and it had not properly responded to her earlier complaint. Ms B chased the Council in August as she had not had a proper response to her complaint. The Council responded on 25 August. It agreed that not all the complaints correspondence had been handled properly, and apologised for this. It said that her disagreement about the school named in the EHC Plan was for the Tribunal.
34. Ms B complained again on 2 October that the Council had followed the plan agreed in mediation. The Council responded on 14 December. It apologised for the delay and agreed that it had not followed the actions agreed at mediation, and that its failings had caused Ms B and her son uncertainty. The Council apologised and offered to make a symbolic payment to her to be used as she sees fit in supporting her son.

Analysis

35. A local authority should review an EHC Plan every twelve months and then decide whether to maintain, amend or end the Plan. The previous authority had not reviewed the Plan because it had intended to reassess K’s needs. The reassessment was not completed and annual review was overdue. When a child with an EHC Plan moves areas, the new Council must notify the parent within six weeks of the transfer when it will review the Plan and whether it proposes to carry out a new needs assessment. The review date should be either the annual review date or within three months of the transfer. The County Council has accepted that it did not consider when it should review the Plan nor whether it should carry out a new assessment. It has proposed that it apologises to Ms B and makes a symbolic payment to recognise the impact on her.
36. The Council has acknowledged that it did not start K’s EHC Plan provision within 15 days of the Plan transferring to it and that in fact it did not start to make any provision at all until the end of June 2023. The Council had a duty to make the provision set out in his EHC Plan or if that is not possible consider whether it should make alternative educational provision. The Council’s failure to do either of these, meant that K was without any education from February (when the EHC Plan transferred to the County Council) to the end of June (when the home tutoring started). The Council has proposed a remedy in recognition of the missed provision and this is in line with the Ombudsman’s guidance on remedies.
37. The Council had a duty to maintain K’s Plan. If this is not possible because K was not attending school, then it had a duty to provide a reasonably accessible and available full-time education. The home tutoring of 4.5 hours per week, does not reflect K’s EHC Plan and is not a full-time education.
38. However, as set out above, I have decided that the provision after 4 July 2023 is not within the Ombudsman’s remit because on this date, the Council issued the final EHC Plan, Ms B had the right to appeal. Ms B used that right and the provision is a consequence of the matters that Ms B appealed, ie the named school and the special educational provision. I am not making any finding on whether the Council met its duty to make the provision set out in K’s Plan from when the tutoring started to when the appeal right arose because it spans only a matter of days.
39. Ms B made several complaints to the Council. The Council took some action but did not respond fully to Ms B’s complaints. Ms B was already under significant pressure due to other failings by the Council and its poor communication when she chased progress. Its poor complaint handling caused Ms B additional distress and frustration and put her to additional time and trouble trying to resolve the issues.

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Agreed action

40. The Council will within one month of the date of this decision:
• Apologise to Ms B for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Make the symbolic payment it has offered to Ms B of £200 for the distress and frustration caused to her when the Council failed to consider a review and reassessment soon enough.
• Make the symbolic payment it has offered to Ms B of £2,312.50 in respect of the impact on her and her son of the missed educational provision.
• Make an additional symbolic payment to Ms B of £500 in respect of the distress and frustration it caused her, and the additional time and trouble it put her to, when it failed to communicate with her or respond properly to her complaints.
• Ensure a copy of our final decision is considered by the relevant scrutiny committee and cabinet member; and share a copy of our final decision with all staff dealing with EHC Plans and complaints about these.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I have completed my investigation. There was fault by the Council causing injustice to Ms B and her family.

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Investigator's decision on behalf of the Ombudsman