• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mr X complained the Council has not provided any education or provision set out in the Education Health and Care Plan for his son, Y. The Council has acknowledged fault and offered an appropriate financial remedy for Y’s missed education and provision and the distress caused to the family. We are satisfied this is a satisfactory remedy for the injustice caused.

The complaint

1. Mr X complains the Council has failed to provide his son, Y, with a suitable full-time education since they moved into the Council’s area. This failure includes not delivering the content of Y’s Education Health and Care Plan.
2. Mr X says this has affected the whole family and meant his son has missed out on education and is socially isolated.

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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)
5. 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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How I considered this complaint

6. I considered the information provided by Mr X and discussed the complaint with him. I made enquiries of the Council and considered its response.
7. Mr X and the Council had the opportunity to comment on my draft decision. I considered their comments before reaching a final decision.

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What I found

Education Health and Care Plan

8. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This 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 education or name a different school. Only the First-tier Tribunal (Special Educational Needs and Disability) can do this.
9. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
10. 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. (Special Educational Needs and Disability Regulations 2014) 
11. When a child or young person moves to another council, the new council should inform the child’s parents or the young person within six weeks, the Plan has been transferred and if it proposes to make a new EHC needs assessment or review the EHC Plan.
12. The new authority must review the EHC Plan either:
    • within 12 months from the date of the last plan, or the previous review, or
    • 3 months after the date of the transfer.
13. The council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
14. 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.
15. 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)
16. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
17. 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)

The Armed Forces Covenant

18. The Covenant promises that those who serve or have served in the British Military and their families will not be disadvantaged compared to other citizens because of their service.
19. All councils in England have signed the Covenant but it is up to each council to decide how to deliver on its commitment. We may ask councils to explain how they took the Covenant into account in reaching a decision or in its actions.

What happened

20. Below is a summary of some of the key events in this complaint. This is not intended to be a comprehensive account of everything that took place.
21. Y has complex special needs and an EHC Plan. The Plan set out support for Y with learning skills and behaviours, communication, independence, sensory needs and termly input by a speech and language therapist. The Plan stated that Y would transfer to a special school in September 2023.
22. In May 2023, the Council was contacted by Council B, explaining that the family would be moving into the area under a military assignment in July. The Council received a copy of Y’s EHC Plan and a request from Y’s parents to consult with School C, a special school.
23. The Council approached four schools in July to check if they could meet Y’s needs. Three special schools, including School C, and one mainstream school were consulted. The special schools felt they could be a suitable setting, but accepting Y would be incompatible with the education of others due to capacity.
24. Miss X contacted the Council for an update in August on finding a school placement for Y. The Council failed to respond to Miss X.
25. Mr X made a formal complaint on the 18 August. He said they were a military family and Y had special needs and an EHC Plan. Mr X said he notified the Council about moving into the area in April to ensure Y was able to start school in September, but little progress had been made. Mr X complained about poor communication and having to consistently chase the Council for an update. Mr X said the armed forces covenant was there to ensure service children do not get disadvantaged due to service life. He said, if it was not for service life, Y would be starting a special school in September.
26. The Council spoke to Miss X and explained that it was waiting for a response from the mainstream school. The Council said it could make a referral for tuition, but Miss X said this was not a suitable option for Y. Miss X asked the Council to make a referral for alternative therapeutic provision (AP 1).
27. In October, Mr X contacted the Council stating home tuition would be detrimental to Y and asked the Council if it could provide Y with Speech and Language Therapy.
28. On 3 November, Miss X requested an emergency review of Y’s EHC Plan. Miss X said Y required suitable provision for his needs and his Plan should be updated as soon as possible. In a further email, Miss X requested the Council invite health and social care professionals to the review. The Council told Miss X that health and social care were not actively involved with Y and would therefore not be invited.
29. On 29 November, AP1 advised that they could not meet Y’s needs.
30. In December, the Council made a referral to another alternative provision (AP2). Miss X responded in January and said they had visited the provision and felt it could not meet Y’s needs. Mr X says this is because they had concerns about staff ratios and a lack of toilet facilities in what was an outdoor setting, rather than any lack of cooperation with the options put forward.
31. In January 2024, Miss X contacted the Council and said it had still not arranged an emergency annual review of Y’s EHC Plan.
32. In February, Y was offered a place at a special school. Y has been attending school since then.

Analysis

33. The SEND Regulations 2014 set out what should happen when a child moves from a different area with an EHC Plan. The Council should provide the provision specified in the Plan until it issues an updated Plan.
34. The Council should have informed Mr X within six weeks that the Plan had been transferred and whether it proposed to complete a new EHC needs assessment or review the Plan. The Council failed to write to Mr X to confirm it was responsible for the Plan. The Council’s communication throughout the process has been poor and inconsistent. I note the Council has already acknowledged this.
35. In response to our enquiries the Council said it had worked with the family to provide alternative provision whilst a long-term placement was found for Y, but the family declined the support identified as they felt it would be inappropriate for Y’s needs. Mr X disputes this and highlights weeks with no communication at all and slow referrals for alternative provision.
36. The Council has acknowledged that Y has not accessed education and SEN provision since September and has offered to pay Y £700 per month for five months. This is a total payment of £3,500. In addition, the Council has offered to pay an additional £500 to the family for the distress they experienced.
37. Our guidance on remedies normally recommends a payment of up to £2400 per term for missed provision. I have carefully considered the evidence available, and I welcome the Council’s offer in providing financial redress in recognition of its delays in arranging and delivering the provision Y was legally entitled to. Our guidance on remedies also recommends a remedy payment for distress of up to £500 and I am therefore satisfied the payment is suitable for the injustice caused to Mr X and his family. It is unlikely a further investigation would achieve anything more.
38. Mr X said he was concerned the Council was in breach of the Armed Forces Covenant. The aims of the covenant are to ensure the Council does not provide a lesser service to armed forces personnel and that it takes account of any special circumstances arising from their service in the forces.
39. It is clear there has been fault in this case causing significant injustice to Y and the family. It is clear Y would not have moved to the Council’s area but for Mr X’s military service. However, based on the records I have seen, I do not find the Council provided a lesser service to Mr X, as armed forces personnel, or to his family as a result.
40. The Council is already working on improving its special educational needs services and implementing recommendations we have made in previous investigations. Because of this we have not asked it to make further service improvements on this occasion.

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Agreed action

41. Within one month of my final decision the Council has agreed to:
    • 1. pay Mr X on behalf of Y, £3,500 for missed education and SEN provision; and
      2. pay Mr X £500 to reflect the distress caused by the Council’s faults.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I have completed my investigation and uphold Mr X’s complaint. There was fault by the Council which caused injustice to Mr X. I am satisfied the remedy already offered by the Council is sufficient to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman

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