Summary: There was fault by the Council when it failed to progress a reassessment of a child’s Education Health and Care (EHC) needs, and issue an amended EHC Plan. The Council also failed to consider what action it should take to make sure the child received the education under his existing Plan, when he was not attending school; and it failed to transfer the EHC Plan in good time when the family moved area. The Council’s shortcomings meant that the child missed education and caused him and his family distress and uncertainty. It has agreed to remedy the injustice.

The complaint

1. Ms B complains that the Council:
• failed to transfer her son’s EHC Plan to it when they moved to the area in July 2022;
• issued a draft EHC Plan but it had not spoken to Ms B nor taken into account professionals’ opinions, and it failed to issue a final Plan; and
• failed to provide her son with a suitable education between September 2022 and December 2022.
2. Ms B says the Council’s shortcomings caused her and her family distress and uncertainty. Her son missed education and his mental health deteriorated.

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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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How I considered this complaint

5. 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.
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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What I found

The law and guidance

EHC Plan and the process

7. 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.
8. The council may decide to complete a reassessment of an EHC Plan if it thinks one is necessary. It then has 14 weeks to issue the final EHC Plan from the date it agreed to reassess to the date it issues the final amended EHC Plan.
9. 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)  
10. 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. 
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) 

Alternative Education Provision

12. 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.
13. 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)
14. 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)

What happened

15. 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 Plan was due for its annual review in November 2022.
16. At the beginning of August the City Council wrote to Ms B to confirm that it was now responsible for K’s EHC Plan. Ms B explained that although K’s EHC Plan named a mainstream school in another part of the country, she strongly felt that mainstream school could not meet her son’s needs and he would need to go to a special school. The Council explained that for now it needed to find K a school and his current EHC Plan said he should go to mainstream school. It explained that it would need to present his case to its funding panel and it would consider her views.
17. The Council issued a draft EHC Plan. The Council had not consulted Ms B or any professionals before issuing the draft. It was taken from the existing EHC Plan, but Ms B says the Council had significantly amended the provision. The Council used the draft to consult a mainstream school that Ms B had selected from a list of available schools in the area.
18. At the end of August, the Council’s funding panel considered Ms B’s case. It decided that for now K should go to the mainstream school, but given Ms B’s views that this had not worked at his last school, the Council would reassess K’s EHC needs and issue a new Plan. The law says the Council must issue the final EHC Plan within 14 weeks, so by 8 December 2022.
19. The Council sent the draft EHC Plan to Ms B and she received this on 2 September. Ms B sent the Council her comments on the draft Plan in mid-September.
20. In mid-September the Council offered K a place at a mainstream school with the SEN provision set out in his EHC Plan. It also said that alongside this, the new EHC needs assessment would progress. Ms B was upset that her son had been offered a mainstream school when she considered he needed a special school. She asked the Council to arrange for the school to meet with her first to explain how it would meet K’s needs.
21. The law says that the Council must have a report from an Educational Psychologist when it reassessed EHC needs. At the beginning of October, the Educational Psychologist contacted Ms B. Both the Educational Psychologist and the Council explained to Ms B that this was a necessary part of the assessment. The Council was keen to make sure that it properly assessed K’s needs so that it could give him the right education. The Council also asked the school to contact Ms B to arrange an introductory meeting.
22. Ms B tells me that she met with the school but it said that it could not meet K’s needs on the funding the Council had agreed, and there would not even be a place for him until January 2023. Ms B says that K was not offered a start date nor any transition sessions.
23. At the beginning of November, Ms B contacted the Council to ask for progress with the EHC Plan and K’s school place. Towards the end of November, the school notified the Council that K had not started at the school. The Council met with Ms B but I have not seen a note of what was discussed. Ms B submitted her views on the new EHC needs assessment. Ms B also submitted a complaint to the Council that her son’s new EHC Plan had not progressed and he had not been given a suitable school.
24. At the end of November 2022, the family moved out of the Council’s area. The Council says it was not aware of this until the beginning of February 2023, and it notified the new council on 17 February. However, Ms B says she notified the Council when she moved and she has sent me an email from the City Council dated the 11 January, that refers to her move to the new Council’s area. It says that the officer was trying to progress the EHC Plan before officially transferring it to the new council. It also apologises that the Council had not been in touch with her sooner.

Analysis

25. I appreciate that the K was in the city council’s area for a relatively short period of time, but clearly the Council still had legal duties to maintain his EHC Plan; to progress the reassessment and new EHC Plan; and to make sure he had a reasonably available and accessible education.
26. The Council should have made sure that K had educational provision from 15 working days after the EHC Plan transferred to it. This would have been from around 25 August and I would expect provision to have been in place by the start of the new school year at the end of August. The Council did place him in a suitable school according to his EHC Plan existing at that time. This was slightly later than it should have been. However, the injustice to K and Ms B from this is limited because the delay is minimal and Ms B is unlikely to have sent K to the school.
27. The Council sent a draft EHC Plan on 24 August but this was a simple amendment and not a review. It had not consulted Ms B or reviewed the EHC Plan properly. However, when the Council agreed on 1 September that it needed to reassess K’s needs, it had until 8 December to issue the final Plan. This was an opportunity for the Council to gather information and views from Ms B and other professionals.
28. The Council did not complete the EHC needs assessment, and did not issue a final EHC Plan. The Council says the reassessment was delayed as it did not receive Educational Psychologist advice, and this was because they needed to assess K in school and Ms B would not send K to the school. I note from the Council’s records that it explained to the Ms B that the Psychologist needed to assess K to make sure that the next EHC Plan accurately reflected his needs and the necessary provision.
29. It is not for the Ombudsman to decide how the Educational Psychologist should complete the assessment. However, the duty to issue the final Plan within 14 weeks remains. There is no indication that the Council properly considered how it might intervene to move the assessment along, nor took any action to do so. The Council stopped corresponding with Ms B at the end of November. The delay in issuing the EHC Plan meant that Ms B did not have a right to appeal the decision that her son should go to a mainstream school.
30. Although the Council was reassessing K’s needs to issue a new EHC Plan, it still had a duty to make sure K received the educational provision set out in his existing Plan. I appreciate that the Council had offered a place in line with the existing Plan. However, Ms B met with the school and she tells me that the school confirmed it could not meet K’s needs. In any case, the Council knew that K was not in school from at least mid-October, over a month after he was supposed to have started there. There is no indication that the Council considered how to deliver K’s EHC Plan provision while he was unable to attend school. This is fault by the Council and caused K to be without the provision he was entitled to.
31. The Council should have also considered whether it had a duty to make alternative provision given that K was not in school. It may have been that had the Council considered this, it would have decided that K had a reasonably available and accessible at the school. However, its lack of proper consideration of this duty was fault.
32. The Council took too long to transfer K’s EHC Plan to the new council. I am not certain of the date the City Council knew that K had moved or was planning to move area, but the SEN Regulations are clear that the transfer must happen on the day of the move or within 15 working days of the council knowing about the move. The Council did not do this. There is no scope to delay this to allow the outgoing council to resolve issues. The Council should have transferred the EHC Plan to the new council sooner. The delay and lack of communication around this caused Ms B distress and frustration. It also caused her uncertainty as to when she could start to arrange her son’s education with the new council.

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Agreed action

33. The Council will within one month of the date of this decision:
• Apologise to Ms B. 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 a symbolic payment of £200 to Ms B in recognition of the impact on her in delaying the EHC Plan and her appeal rights.
• Make a symbolic payment of £400 to Ms B to be used as she sees fit for the benefit of K, in recognition of the impact on K when the Council did not properly consider how to maintain the EHC Plan or alternative educational provision.
• Share this decision with relevant staff.
34. The Council will within three months of the date of this decision, review its protocol or internal guidance for transferring EHC Plans when a child moves out of its area to make sure this is clear and complies with the SEN Regulations. It should then share the protocol with staff, or if it decides that a separate protocol is not needed remind staff that the SEN Regulations has a strict timeframe for this.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation. There was fault by the Council causing injustice to Ms B and her family. The Council has agreed to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman