Summary: There was fault by the Council as there was delay providing full time education for two children with Education, Health and Care plans who moved into the area. The Council did offer travel costs for the children to stay at their old school and tuition which their parent felt was unsuitable. The Council accepted it was at fault when it considered an official complaint and offered a suitable remedy to the injustice of a payment, plus an apology before the Ombudsman considered the complaint.

The complaint

1. The complainant, who I shall call Mr X, complains the Council delayed finding a school placement for his two children when they moved into the area. Mr X says that he incurred childcare costs and his children missed a term’s education.

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The Ombudsman’s role and powers

2. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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)
4. 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 have investigated

5. I have investigated events up to 9 January 2024, when the new EHC Plan named a school.

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How I considered this complaint

6. I read the papers put in by Mr X and discussed the complaint with him.
7. I considered the Council’s comments about the complaint and any supporting documents it provided.
8. Mr X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

9. Mr X has two children (now in primary year 2 and 3) and was living in another Council’s area. Both children had EHC Plans and went to specialist schools
10. The Council was told Mr X would be moving to its area in September 2023 as the old Council sent the EHC Plan and file. Mr X moved on 4 October 2023.
11. The Council consulted Mr X’s preferred schools on 4 October 2023, the day he moved. The Council also consulted other specialist schools.
12. The Council told Mr X on 25 October 2023 that it would be willing to provide transport to the children’s old school until it found a new placement for them. In response, Mr X told the Council that he wanted to engage his right for his children to attend a mainstream school. Mr X explained to me that he felt it was too far for his children to travel. The school is around 30 miles from Mr X’s new address which navigation programs say would take about 50 minutes. Mr X says the travel could take up to 1.5 hours, over the 45 minutes that guidelines say is the longest time primary children should travel to school. The Council also offered tuition for the children. Mr X says this was only 3 hours a day and he did not think that one tutor would have been able to meet the needs of his children.
13. The nearest mainstream school to Mr X’s new address said that it could not meet the children’s needs. The Council named this school in the EHC Plan’s for both children on 9 and 11 January 2024.

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The law

14. The Special Educational Needs and Disability Regulations 2014, Section 15, sets out what Council’s have to do in relation to the transfer of EHC Plans.
15. Section 15, part 1 says this regulation applies where a child or young person in respect of whom an EHC plan is maintained moves from the area of the local authority which maintains the EHC plan (“the old authority”) into the area of another local authority (“the new authority”).
16. Part 2 says the old authority shall transfer the EHC plan to the new authority (“the transfer”) on the day of the move or, where it has not become aware of the move at least 15 working days prior to that move, within 15 working days beginning with the day on which it did become aware.
17. Part 3 says from the date of the transfer:
• (a) the EHC plan is to be treated as if it had been made by the new authority on the date on which it was made by the old authority and must be maintained by the new authority; and
• (b)where the new authority makes an EHC needs assessment and the old authority has supplied the new authority with advice obtained in pursuance of the previous assessment the new authority must not seek further advice where the person providing that advice, the old authority and the child’s parent or the young person are satisfied that the advice obtained in pursuance of the previous assessment is sufficient for the purpose of the new authority arriving at a satisfactory assessment.
18. Part 4 says the new authority must, within 6 weeks of the date of the transfer, tell the child’s parent or the young person of the following—
• (a) that the EHC plan has been transferred;
• (b) whether it proposes to make an EHC needs assessment; and
• (c) when it proposes to review the EHC plan in accordance with paragraph (5).
19. Part 5 says the new authority must review the EHC plan in accordance with section 44 of the Act before the expiry of the later of—
• (a) the period of 12 months beginning with the date of making of the EHC plan, or as the case may be, with the previous review, or
• (b) the period of 3 months beginning with the date of the transfer.
20. Part 6 says where, by virtue of the transfer, the new authority comes under a duty to arrange the child or young person’s attendance at a school or other institution specified in the EHC plan but in the light of the child or young person’s move that attendance is no longer practicable, the new authority must arrange for the child or young person’s attendance at another school or other institution appropriate for him or her until such time as it is possible to amend the EHC plan.

My analysis

21. In the Council’s response to Mr X’s complaint it accepted it was at fault, in not arranging for Mr X’s children to attend school, while the EHC Plan was amended to name a new school, from 4 October 2023 until 31 January 2024. This was 14 weeks not counting holidays. The Council offered Mr X a payment of £1453.84 for lost education for the two children, plus a £250 time and trouble payment for raising the complaint. The Council said this was calculated using the Ombudsman’s guidance of £900 per term x 2 children = £1800 per term, so £103.85 per week. Then £103.85 x14 = £1453.84.
22. Our guidance on remedies says that ‘where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss’.
23. The children now have a school place and the Council has issued the amended EHC Plan just outside the 3 months. Mr X’s complaint is that no education was provided for the 4 months after he moved into the area. The Council has said that this was fault and upheld his complaint, offering a remedy before Mr X came to the Ombudsman. Mr X has complained the remedy does not cover the costs he had for childcare during that period. Mr X has also said that he wants compensation for the impact on his children’s developmental progress and his family. He would also like his children to repeat the school year.
24. I have considered all the information and in my view, the remedy already offered by the Council is in line with the Ombudsman’s remedy guidance.
25. The Council did offer Mr X options to mitigate his children’s loss of education. I accept that Mr X did not want to take these options but I have to take them into account when deciding if the remedy is adequate. While I understand that Mr X did not want his children to travel to their old school due to the distance and he felt that the tuition was not suitable, they were reasonable options for the Council to offer while it sought school places. Given these offers were in place, I do consider that the minimum remedy according to our guidance is a suitable remedy and no service improvements are needed.

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Investigator's decision on behalf of the Ombudsman