Summary: Ms X complained the Council failed to provide her son with a suitable education or update his Education, Health and Care Plan for two years after they moved into the Council’s area. The Council failed to secure the provision in his EHC Plan for over two years, provided only a limited amount of tutoring and delayed reviewing the EHC Plan causing frustration and distress. A suitable remedy is agreed.

The complaint

1. Ms X complains the Council failed to provide her son, Z, with a suitable education or update his Education, Health and Care Plan for two years. She also complains she was left without support and there has been poor communication.
2. Ms X says her son has missed out on education and learning opportunities and her physical and mental health has been affected.

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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. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

EHC Plan 

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. 

Maintaining the EHC Plan

8. 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)  
9. 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. 

Transfer of EHC Plans

10. The SEN Code of Practice details what should happen when a child moves to another local authority. It states the old authority must transfer the EHC Plan to the new authority on the day of the move or within 15 working days if it was not given notice of the move. Upon transfer, the new authority becomes responsible for maintaining the plan and for securing the special educational provision specified in it.
11. The requirement for the child to attend the educational institution specified in the EHC Plan continues after the transfer. However, where attendance is impractical, the new authority must place the child temporarily at an appropriate educational institution other than that specified until the EHC Plan is formally amended.
12. The new authority 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.

Key facts

13. This section sets out the key events in this case and is not intended to be a detailed chronology.
14. In July 2022, Ms X and her family moved from a neighbouring local authority area to Bradford. Her son, Z, had an EHC Plan. The existing local authority contacted Bradford Council in August to inform it Ms X and Z were moving to Bradford and to share the EHC Plan.
15. The Council contacted Ms X on 16 September 2022 sending a welcome letter to say it was now responsible for Z’s EHC Plan. The letter noted that Ms X had expressed a preference for a local school. The school subsequently told the Council it was unable to meet Z’s need.
16. There is nothing to suggest any further action by the Council until Ms X contacted it in January 2023 to request a home tutor. The Council failed to respond to this request immediately but did conduct a home visit on 29 March. The Council offered alternative provision via its Medical Needs and Hospital Education Service (MNHES). Ms X visited MNHES in April 2023 but she did not consider it was a viable option for several reasons including the distance, transport issues and the focus of the provision.
17. In June 2023, Ms X visited the local primary school she previously indicated was her preference for Z to attend. The Council has not provided any details of the outcome of this visit including whether the school said it could meet Z’s needs or a place was offered for Z.
18. In September 2023, the local primary school contacted the Council saying Z was not attending school. Ms X says that she was never told there was a place for Z at this school. The Council again offered Ms X a place at MNHES and she raised the same concerns including the travel arrangements. The Council then offered home tutoring and the first lesson for Z took place in November 2023. It is my understanding Z received up to three hours of tutoring per week.
19. Ms X made a formal complaint on 9 October 2023. The Council responded to Ms X’s complaint at stage one of its complaint procedure on 21 November 2023. It expressed its regret and apologised for the lack of communication she had experienced since moving into its area. It said the locality team had undergone a number of changes and experienced reduced staffing.
20. The Council also accepted it failed to progress Ms X’s request for a home tutor in January 2023. The Council partly upheld Ms X’s complaint regarding the MNHES offer and said it understood her concern about the travel distance and arrangements but said this is something that could have been explored. It said an officer would contact her within a week to arrange an annual review of Z’s EHC Plan and to discuss placement options.
21. The Council says that in March 2024 Ms X contacted the home tutor to reduce the sessions from one hour to 40 minutes because Z was struggling to concentrate. The Council says Ms X subsequently asked to cancel all sessions however the sessions continued. Ms X says she never requested the sessions should end.
22. The Council began a review of Z’s EHC Plan by holding a review meeting on 19 March 2024. It sent Ms X a proposed amended EHC Plan on 21 May and began to consult schools. The final amended EHC Plan was sent to Ms X on 7 October 2024 naming a school. The issuing of the final EHC Plan meant Ms X’s right of appeal engaged if she disagreed with the content of the EHC Plan including the named school. It is noted the final EHC Plan was sent after the Ombudsman began her investigation into this complaint.

Analysis

23. Ms X complains about the failure to provide her son with a suitable education when they moved to a new local authority during the summer of 2022. I am satisfied the old local authority notified Bradford Council properly of the family’s move into its area. The Council accepted responsibility and sent a welcome letter but this was after the start of the school year.
24. The SEN code of practice required the Council to place Z at a new school temporarily if attendance at his old school was not practical. It is my understanding it was impractical for Z to continue at his previous school. The Councill failed to provide a placement. This is fault.
25. It was then open to the Council to conduct a review of Z’s EHC Plan and conduct a new needs assessment. The Council does not have to do this but it must review the EHC Plan within specified timeframes. For Z this would be 12 months from when his EHC Plan was last reviewed which was February 2022. The Council should have reviewed Z’s EHC Plan in February 2023. This did not happen which is fault.
26. The Council did not actually review Z’s EHC Plan until February 2024 over a year later than should have happened. The review process starts with a review meeting after which the Council has to notify the parent within four weeks whether it intends to amend the EHC Plan and also provide details of the proposed changes. The final amended EHC Plan should then be issued within eight weeks. This means the whole process should take 12 weeks.
27. In this case the review meeting was held on 19 March 2024 and the Council issued the final amended EHC Plan on 7 October. The process took almost 29 weeks, more than double the statutory timescale. This is fault. As the final EHC Plan has now been issued, Mrs X’s appeal rights have engaged if she disagrees with the content and/or the named school. For that reason, I have not considered matters after 7 October.
28. The Council’s duty to ensure Z received the provision set out in his EHC Plan began at the point the old local authority transferred the EHC Plan which was August 2022. The Ombudsman has set out the minimum she expects Council’s to do to ensure the SEN provision is delivered. I have explained this at paragraph eight above.
29. The information provided indicates the Council did not take action to identify a suitable placement for Z from September 2022 and did not provide any alternative education provision until November 2023. I note it offered MNHES in April 2023 but Ms X raised concerns about the suitability and there is nothing to suggest the Council properly explored these concerns with Ms X. As a result Z did not receive any education or the SEN provision set out in his EHC Plan for over a year.
30. When tutoring began in November 2023 this was for up to three hours per week. The Council says that 10 hours of tutoring per week was agreed and commissioned. However, it is unable to provide any evidence to show this happened or that it was explained to Ms X it was its intention to increase the tutoring hours to 10 per week. Z struggled to cope with the tutoring and this was reduced by Ms X in March 2024. It was around this time the Council actually began the review of Z’s EHC Plan, over a year later than should have happened.
31. As a result of the failings by the Council to take the action it should from August 2022 to October 2024, Z has not received the education he was entitled to and his special educational needs have not been met. This has caused distress to Ms X, Z and the whole family. Ms X says her physical and mental health has been compromised. She also says she was unable to find employment as she had to care for Z. Z has lost opportunities to socialise and be educated.

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Agreed action

32. To remedy the injustice caused as a result of the fault identified above the Council will, within one month of my final decision, take the following action:
• Apologise to Ms X;
• Make a symbolic payment of £1000 to Ms X to recognise her distress and frustration. This payment is higher than the amount usually recommended by the Ombudsman as I consider the distress was prolonged in this case; and
• Make a payment of £13,750 to be used for the benefit of Z to recognise the loss of education and special educational provision from September 2022 to October 2024. In reaching this figure I have taken account of the fact some tutoring was provided from November 2023.
33. The Council should provide us with evidence it has complied with the above actions.
34. My draft decision statement included a recommendation for a service improvement. The Council has provided information to show it has already taken appropriate action to ensure similar problems do not happen again. I welcome this action by the Council.

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Final decision

35. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman