Summary: Mrs X complained the Council failed to provide a suitable education or follow proper process to review her son’s Education Health and Care Plan after they moved to the Council’s area. The Council offered suitable interim educational provision for Y pending a reassessment of his EHC Plan. However, the Council’s failure to complete the reassessment of Y’s needs and issue a final EHC Plan is fault. This fault has caused Mrs X and Y an injustice.

The complaint

1. The complainant, whom I shall refer to as Mrs X complained the Council failed to provide a suitable education or follow proper process to review her son, Y's Education Health and Care (EHC) Plan after they moved to the Council's area. Mrs X complained Y has not received a suitable education for over a year as the Council’s only offer of education was at an inappropriate setting.

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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. 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)
3. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (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 regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. 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)
6. 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

7. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• Mrs X and the Council 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

Education Health and Care Plans

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 SEND tribunal can do this.
9. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
10. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC plan to the ‘new’ council. On transfer the new council becomes responsible for maintaining the plan and securing the special educational provision specified in it. The new council must tell the child’s parent or the young person, within six weeks of the date of transfer:
• that the EHC plan has been transferred;
• whether it proposes to make an EHC needs assessment; and
• when it proposes to review the EHC plan.
11. The new council must review the plan before one of the following deadlines, whichever is the later:
• Within 12 months of the plan being made or being previously reviewed by the old authority; or
• Within three months of the plan being transferred.
12. Where a council decides to re-assess a child or young person’s needs the whole process must be completed and a final EHC Plan issued within 14 weeks of the decision to re-assess.

Alternative provision

13. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
14. 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)
15. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))

What happened here

16. Mrs X’s son Y has an EHC Plan. The family moved to the Council’s area in late February 2023 and the Council received Y’s EHC Plan documents from the previous council on 30 March 2023. The Council then wrote to Mrs X on 14 April 2023 confirming it was now responsible for Y’s EHC Plan.
17. Although Y’s existing EHC Plan named specialist provision, Mrs X said the previous council had agreed a personal budget for Education Other Than At School (EOTAS). The Council told Mrs X that while the information from the previous council referenced an agreement for EOTAS, it did not include any details about how the provision would be implemented, or whether a personal budget was agreed, and if so, for what element and what it was used for.
18. Given the gaps in the information it had received, the Council told Mrs X it intended to carry out a re-assessment of Y’s needs. In the interim it would fund a bespoke package of educational provision which would be managed by School 1. The Council would ask School 1 to liaise with Mrs X regarding the interim support package. Alternatively, if Mrs X wanted to consider specialist provision, the Council suggested five schools which may be suitable.
19. Mrs X refused the offer of a place at School 1 as she did not consider it would be able to support Y’s needs. She asked the Council to reinstate Y’s EOTAS package and arrange an EHC Plan annual review.
20. The Council acknowledged Mrs X’s concerns about Y’s complex needs and advised it was able to adopt a more flexible approach than their previous council. It was satisfied School 1 could deliver bespoke provision as an interim short-term measure while it carried out the re-assessment. The Council asked Mrs X to provide contact details for those involved in delivering Y’s previous EOTAS package so it could consider replicating it.
21. In addition the Council confirmed it had agreed to carry out a statutory reassessment of Y’s needs rather than a review of the existing plan.
22. The following week the Council again asked Mrs X to contact School 1 to discuss setting up bespoke educational provision for Y. It also repeated its request for details of those involved in Y’s previous package. Mrs X maintained the Council was required to provide the provision specified in Y’s EHC Plan outside of school, and that it could not force her to enrol Y at School 1. She suggested the easiest way achieve this was through a personal budget. Mrs X asked the Council to confirm whether it was declining her request for a personal budget and if so, to set out the grounds for rejection.
23. In response, the Council noted Y’s EHC Plan referred to special school provision. It confirmed it would secure this if Mrs X wished and referred to its earlier offer to consult a range of special schools. The Council noted the previous council had not recorded how it reached the decision that no school or alternative provision could meet Y’s needs. It did not believe no school or alternative provision could meet Y’s needs and so was not under a duty to provide a personal budget. The Council again urged Mrs X to contact School 1 to discuss Y’s educational provision.
24. On 15 May 2023 Mrs X made a complaint about the Council’s failure to review Y’s EHC Plan. The Council responded the following week and noted that it had accepted responsibility for Y’s EHC Plan and was carrying out an assessment. It explained there was no duty on the Council to also carry out a review of the EHC Plan as the two processes cannot run at the same time.
25. The Council confirmed it was gathering information about Y’s needs from colleagues in education, health and social care and would then provide a draft new EHC Plan.
26. In addition the Council noted Mrs X did not want to consider any of the numerous specialist provisions it felt could be suitable. And she did not want to liaise with the School 1 regarding them managing and monitoring a bespoke, individualised package of education for Y. The Council urged Mrs X to reconsider these options.
27. As part of the reassessment an Educational Psychologist (EP) visited Y at home in May 2023 and prepared a report dated 6 June 2023.
28. Mrs X made a formal complaint in early July 2023. She complained the EP had carried out the assessment using the out-of-date EHC Plan. Mrs X was unhappy the EP report suggested that with a careful transition package Y could successfully integrate back into a school setting. She considered the report brushed over Y’s severe mental health issues, suicidal ideation, self-harm, and anxiety.
29. In addition Mrs X complained the Council had not carried out an annual review or provided Y with educational provision. She was unhappy the only options available were School 1 or to electively home educate Y.
30. Mrs X subsequently asked the Council to investigate her concerns that;
• School 1 was not a suitable environment for Y.
• The recommendation for provision at School 1 was based on Y’s out of date EHC Plan and the Council had been unhelpful and obstructive in arranging an annual review.
• The head teacher at School 1 had no knowledge of Y’s needs and the support he requires.
• Y had received a personal budget and EOTAS package from their previous council, which had worked well and Y had thrived.
• She had been told the Council ‘do not believe in EOTAS’ and that her only options were School 1 or to electively home educate Y
• Y’s consultant psychiatrist agreed Y should not attend School 1
• Y had been away from school for more than 15 days and there were no plans in place for September
• The Council’s inflexible policies were acting as a barrier to Y receiving an appropriate full-time education.
31. The Council’s response noted Mrs X felt School 1 was not a suitable environment for Y and explained the school could provide bespoke packages aligned to a pupil’s needs. It confirmed this could be working on a 1-1 basis or in small groups and could be onsite or off site.
32. In addition, the Council told Mrs X the school had access to continued EP input and Autism Spectrum Disorder (ASD) specialist teacher advice. It also had local knowledge and established links with health, social care services and professionals in the local area. This could facilitate any multi-agency working to support Y’s reintegration, when appropriate, in to education alongside his peers.
33. The Council advised School 1 would also ensure the quality of teaching and the curriculum delivered would be monitored and reviewed to enable Y to make progress. It noted the EP had reported Y had expressed a desire to return to school and the Council wanted to support him with this.
34. It also noted the head teacher at School 1 had tried to engage with Mrs X and was keen to meet with her to look at what provision Y required. But Mrs X had not accepted their offers to meet.
35. The Council noted Y had been offered a number of education provisions since moving to the area. These offers were still available and the Council wanted Mrs X to work with it to support Y in accessing provision.
36. The Council also confirmed the reassessment was now complete and Y’s needs would be reflected in the draft EHC Plan. The Council had requested updated health advice as part of the reassessment and there was no reference in the advice to Y not attending school. It reiterated that it had not received any evidence from the previous council about the EOTAS package.
37. The Council issued a draft EHC Plan on 6 September 2023. Mrs X had concerns about the Plan and asked for a meeting. She wanted the draft Plan to be reviewed and amended, and for EOTAS to be named in section I. Mrs X also asked for another EP assessment.
38. The Council arranged a meeting for 10 October 2023 with officers and a new EP to discuss the changes to the EHC Plan Mrs X had requested. The minutes of the meeting record there was also a discussion about Y’s previous EOTAS package and what School 1 could offer. The agreed next steps were for:
• Mrs X to provide copies of existing OT reports to see whether they can be used or an OT report needs to be commissioned;
• a meeting between School 1, the new EP and Mrs X to discuss what can be offered
• the EP to meet Y;
• the ASD team to be involved; and
• the EHC Plan to be updated on receipt of updated information.
39. The new EP met with Y and his parents in November 2023 and produced a report in January 2024.
40. As Y was still not accessing education the Council invited Mrs X to a further meeting on 26 January 2024 with officers, the head teacher at School 1 and the EP to discuss how they could support Y to engage. Mrs X agreed to attend but noted she had still not received an updated EHC Plan. She asked the Council to provide this before the meeting as without it the meeting may not be productive. Shortly before this meeting the Council issued a further amended report.
41. The minutes of the meeting show the head teacher explained what could be provided through a bespoke package and also explained how the Hub worked. The minutes note Mrs X agreed to look around the Hub, with a view to Y visiting.
42. The Council told Mrs X at the meeting that it would name School 1 in Y’s EHC Plan. The Council issued a final EHC Plan on 2 February 2024. Section I of this plan names the Hub at School 1. Mrs X has not exercised her right of appeal to the SEND Tribunal.
43. School 1 notified the Council on 22 February 2024 that Y was now on roll and attending morning Hub.
44. Mrs X complained to the Ombudsman on 25 January 2024 as the Council had still not issued a final EHC Plan. She remained concerned that the Council had offered an inappropriate setting based on out-of-date information in Y’s previous EHC Plan and had ignored the consultant psychiatrist’s advice. Mrs X was frustrated her son was being excluded from an education due to his complex needs and that the Council was ignoring his barriers to learning.
45. Mrs X complained they had not been fully included in the EHC Plan review process and that decisions had been made about her son which she did not agree with. She wanted the Council to review its policies and change the way it manages and reviews EHC Plans, and to adhere to SEND legislation.

Analysis

46. Legislation and Government guidance set out a clear procedure and timeframe for what should happen when a child or young person with an EHC plan moves to another council. The documentation provided shows the Council did not meet the statutory timeframe.
47. The Council received Y’s SEN file from the previous council on 30 March 2023. It then wrote to Mrs X on 14 April 2023 confirming responsibility for Y’s EHC Plan and that it intended to carry out a statutory reassessment of Y’s needs. This was within the required six-week timeframe.
48. However, having decided to reassess Y’s needs the whole process should have been completed and a final EHC Plan issued within 14 weeks. This means the Council should have issued a final EHC Plan by 21 July 2023. It did not issue Y’s final EHC Plan until 2 February 2024. This significantly outside the statutory timeframe. Delays of this nature are concerning and clearly unacceptable.
49. The Ombudsman takes the view that councils must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault.
50. The delay in reassessing and amending Y’s EHC plan following his transfer in March 2023 caused Mrs X distress and frustration. It also delayed her ability to exercise her right of appeal to the SEND tribunal in relation to the named setting and/ or content of the plan. I consider the Council should make a symbolic payment to recognise the frustration and distress Mrs X has experienced.
51. Statutory guidance also confirms that the requirement for the child or young person to attend the educational institution specified in the EHC Plan continues after the transfer. Where attendance would be impractical the new council must place the child or young person temporarily at an appropriate educational placement until the EHC Plan is formally amended.
52. As Y’s existing EHC Plan named a special school, we would expect the Council to offer a placement at a local special school. The Council suggested five possible special schools for Mrs X to consider. Mrs X did not want Y to attend school and told the Council the previous local council had provided Y with an EOTAS package. However Y’s Plan had not been amended to reflect this and the Council did not have any details of the provision included in the package. The Council offered Y a bespoke package of education arranged and managed by School 1. I consider this to be an appropriate offer.
53. The Council repeatedly asked Mrs X to contact School 1 to discuss possible provision. It also asked Mrs X to provide contact details for those involved in Y’s previous package so that it could consider replicating it. The documentation provided shows Mrs X was unwilling to engage with School 1 as she did not consider it could meet Y’s needs.
54. It is unfortunate that Y did not receive any educational provision after moving to the Council’s area until he started attending the Hub at School 1 in February 2024. I do not however consider this was due to fault on the part of the Council. Educational provision was available for Y from April 2023 when the Council accepted responsibility for his EHC Plan.

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Agreed action

55. The Council has agreed to:
• apologise to Mrs X and Y for the delay in completing the reassessment of Y’s needs and in issuing a final EHC Plan. 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.
• pay Mrs X £300 to acknowledge the distress and frustration she experienced as a result of the delay in completing the reassessment of Y’s needs and in issuing a final EHC Plan.
56. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Final decision

57. The Council offered suitable interim educational provision for Y pending a reassessment of his EHC Plan. However, the Council’s failure to complete the reassessment of Y’s needs and issue a final EHC Plan is fault. This fault has caused Mrs X and Y an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman