Summary: Ms X complained the Council failed to provide the specialist educational provision in her children, Y and Z’s, Education, Health and Care (EHC) Plans when they moved into the Council’s area. The Council failed to provide the specialist provision in Y and Z’s Plans between September and October 2023 and did not have due regard to the Armed Forces Covenant. The Council will pay Ms X £2,500 to recognise the injustice caused to her, Y and Z and will review how it manages the transfer of Service children with EHC Plans.

The complaint

1. Ms X complained the Council failed to provide the specialist educational provision in her children, Y and Z’s, Education, Health and Care (EHC) Plans when they moved into the Council’s area. Ms X said her children missed out on the provision in their EHC Plans which had a detrimental effect on their development and caused the family stress, anxiety and frustration. Ms X wanted the Council to provide the provision set out in her children’s EHC Plans and to provide compensation for the impact on the family.

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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 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
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
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. I read the documents Ms X provided and discussed the complaint with her on the phone.
8. I considered the documents the Council sent in response to my enquiries.
9. Ms 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

Relevant legislation and guidance

Education, Health and Care Plans

10. 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. 
11. 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)  

Reviewing the EHC Plan

12. The annual review of an EHC Plan 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.

Appeal rights

13. There is a right of appeal to the Tribunal against:

• the description of a child or young person’s SEN (Section B), the special educational provision specified (Section F), the school or placement or that no school or other placement is specified (Section I); or
• an amendment to these elements of an EHC Plan.

14. 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)
15. 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.

The Armed Forces Covenant

16. All local councils in England are signatories to the Armed Forces Covenant. It promotes the fair treatment of active and former military personnel and their families to ensure they can access public services such as housing, education and health services without unfair disadvantage.
17. The SEND code of practice recognises that children of people serving in the armed forces (Service children) may face difficulties arising from their parent’s employment, which includes having to move often and sometimes at short notice. It says transitions should be well managed to avoid Service children with special educational needs experiencing delays in having their needs met.
18. When Service children move to a new council area the new council must tell the parents within six weeks of the transfer of the EHC Plan whether it will bring forward the annual review of the Plan and whether it intends to reassess the child. From the transfer of the Plan the new council must arrange the special educational provision set out in it, although a child may have to be placed in a school other than the one named on the plan if the distance of the move makes it impractical.
19. Council’s must work with each other, particularly those which have military bases within their areas, and children education advisory service (CEAS), so that special educational provision can be made as soon as a child arrives in the new council.

What happened

20. Ms X has two children Y and Z. They both have neuro-differences and additional needs. The family lived in a different council area (Council B) in 2023. Council B issued an EHC Plan for Y and an EHC Plan for Z in late summer 2023 that set out the specialist provision they needed.
21. The Plans said the children should attend a mainstream setting. They set out their individual needs and the support they required from their teachers and school staff during the school day. Y and Z were due to transition to the next phase of their education in September 2023.
22. At the end of August Council B told this Council that Y and Z had moved to its area.
23. In mid-September the Council contacted Ms X and asked her which school she wanted Y and Z to attend. Ms X said she wanted them both to attend School A.
24. The Council issued a draft amended EHC Plan each for Y and Z. It went on to issue amended final Plans at the end of October 2023. The Plans both said Y and Z should attend a mainstream school, but did not name a school they should attend. The Council told Ms X of her right to appeal to the SEND Tribunal if she disagreed with the content of the Plans.
25. The Council continued to consult schools for placements for the children. In mid-October the Council said it would arrange tuition for the children while it continued to look for suitable schools.
26. At the beginning of November the Council offered tuition. Ms X told the Council she wanted to wait for the outcome of some ongoing school consultations until she agreed to the tuition. Ms X agreed to the tuition at the end of November 2023.
27. Ms X complained to the Council at the beginning of December 2023. She said the Council had not provided section F in Y or Z’s EHC Plans since they were issued in October 2023. She said she wanted it to name School B as parental preference for both children. She said the Council was not treating them fairly as a Service family which was not in line with the Armed Forces Covenant.
28. The Council’s tuition provider met with Ms X at the beginning of December. The record of the meeting states Ms X and the tutor agreed to begin with three sessions of 30 minutes each per child. The tuition began two days later.
29. The Council responded in January 2024 and said there had been a delay in it securing a suitable placement for both children, and it apologised for the frustration this caused. It said it had arranged educational provision at home for the children while it looked for schools. It said it could not consider the complaint about the named school as Ms X had a right of appeal to the SEND Tribunal. It did not consider Ms X’s complaint about the Armed Forces Covenant.
30. Ms X told the Council she wanted to escalate her complaint. Ms X said the Council had not explained how it was upholding the Armed Forces Covenant. She said three hours tuition per week was not a full-time education the children were entitled to.
31. The Council declined to consider the matter further. It said the Armed Forces Covenant did not apply as they were not disadvantaged as a Service family because many other people in the Council area were in the same position of not having a suitable named placement. It said tuition would be built up over time and was more concentrated than education in a classroom.
32. The records show the tuition sessions had built up to three hours a week each for Y and Z. The Council reviewed the tuition at the beginning of February 2024. The tutor requested an increase to four hours per week for each child. The Council agreed this and it was provided in February 2024.
33. In February Ms X registered a late appeal to the SEND Tribunal about the lack of a named school in section I of both Y and Z’s EHC Plan.
34. The Council issued a further final amended EHC Plan for Y and Z on 22 February 2024. It named school C, a special school, as the school the children should attend. The Council told Ms X of her appeal right if she disagreed with the content of either EHC Plan.
35. Ms X asked the SEND Tribunal to include an appeal against Section B and Section F of both EHC Plans alongside the original appeal against Section I. the Tribunal agreed to this change.
36. In response to my enquiries the Council said it recognised there were weaknesses within its EHC Plan transfer process. It said it would consider reviewing the process to make sure it was in line with the legislation.

My findings

Specialist educational provision

37. As set out in paragraph 14, 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. Ms X appealed to the SEND Tribunal about sections B (needs), F (provision) and I (placement) of the EHC Plans that were issued for Y and Z in late October 2023. For that reason I have not investigated the specialist educational provision for either child after the EHC Plans were issued in October.
38. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
39. The SEND code of practice states the Council must provide the section F provision within 15 days of it being aware a child with an EHC Plan has moved into its area. It should also arrange a new placement upon transfer if the old placement is no longer appropriate to attend. In Y and Z’s case it should have provided this by mid-September 2023. The Council did not arrange or provide a placement or any specialist educational provision before it issued the amended EHC Plans at the end of October 2023. That was fault and meant that both Y and Z did not receive the provision in their Plans for five weeks.
40. Y and Z remained at home during that period which meant that Ms X had to manage both of their needs at home. This impacted her wellbeing and caused her distress.

Transfer of an EHC Plan

41. The Code states when a child with an EHC Plan transfers into a new council area, the new council should accept the Plan and provide the provision within 15 days. It should then either review the EHC Plan within 12 months of the last review or three months of the transfer, whichever is later. The Council did not accept Y and Z’s Plans as they were and instead issued amended EHC Plans for both children without completing the annual review process. That was procedurally incorrect and was fault. However, as there was a right of appeal against the amended Plans, I do not find this caused an injustice beyond what has been set out in paragraphs 39 and 40.

Armed Forces Covenant and Service children

42. The Council did not have due regard to the Armed Forces Covenant or the SEND code of practice in relation to Service children. It did not tell Ms X if it would bring forward the annual reviews of the EHC Plans within six weeks of the move, or if it would reassess the children’s needs. It did not work collaboratively with Council B or the CEAS advisory service to ensure provision was in place for Y and Z.
43. The Council said the family was not disadvantaged as many other families in the Council’s area were in the same situation. That was not in the spirit of the covenant. The Code recognises that Service children can be disadvantaged by regular moves, often at short notice which do not impact non-service families, as they may be seeking a new placement in a new council area on a more frequent basis. The Council’s failure to have due regard to the Armed Forces Covenant and the Code was fault. I cannot say if the Council would have secured appropriate provision earlier had it acted without fault, but it caused Ms X frustration and uncertainty.

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Agreed action

44. Within one month of this decision the Council will:
• Write to Ms X and apologise for the distress, frustration and uncertainty caused to her by the Council’s faults and pay her £500 to recognise the same. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended.
• Pay Ms X £2,000, £1,000 each for Y and for Z for the specialist educational provision they did not receive between September and October 2023.
45. Within three months of this decision the Council will:
• complete the review of its transfer processes to ensure they are in line with the SEND code of practice in relation to Service children, and have due regard to the Armed Forces Covenant. The Council will produce a timebound action plan to implement any improvements it identifies as necessary as a result of that review; and
• remind relevant staff members dealing with transfers of children with EHC Plans that it should accept the EHC Plan as it is, provide a placement and/or the provision in the Plan and then complete the annual review process set out in the SEND code of practice.
46. The Council will provide us with evidence it has complied with the above actions.

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Final decision

47. I have completed my investigation. I found fault causing injustice and the Council has agreed to my recommendations to remedy that injustice and prevent the same faults reoccurring.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman