Summary: There was no delay in the process of reviewing Y and Z’s Education, Health and Care Plans when they moved to Oxfordshire. There was fault by Council officers in telling Ms X that Z would become a looked after child in order to continue to board at school. This caused Ms X and Z avoidable distress. The Council has already taken action to remedy the injustice including an apology, a symbolic payment and training for relevant staff.

The complaint

1. Ms X complained the Council:
1. Failed to meet statutory deadlines in the Education, Health and Care Plan (EHC Plan) process for her children Y and Z
2. Threatened to make Z a looked after child because its policy was that if a child received residential provision, that child became looked after automatically; and
3. Removed special educational provision from their EHC Plans with no reason or evidence.
4. Failed to meet statutory deadlines in the social care safeguarding process and complaint process.
2. Ms X said this caused avoidable stress and anxiety and avoidable time and trouble and costs having to take the matter to the SEND Tribunal. She also said it had caused Z avoidable anxiety as he was aware the residential element of his school placement may be removed.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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. Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10) 
6. 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)
7. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
8. We provide a free service and we use public money carefully. We do not start or continue an investigation if we decide we could not add to any previous investigation by the organisation (Local Government Act 1974, section 24A(6), as amended, section 34(B))
9. 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)
10. 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 and have not investigated

11. The timeframe for this investigation is February 2022 to March 2024. I have investigated complaints (a) and (b), although they are late. The latter date (March 2024) is the date of the Council’s final response to Ms X’s complaint. As there was a delay by the Council in completing the statutory complaints procedure, I have investigated from 2022.
12. I have not investigated complaint (c) because Ms X appealed to the SEND Tribunal. Removal of provision from an EHC Plan was a matter for the Tribunal to decide. I have not investigated complaint (d) because the Council has already upheld these complaints and apologised to Ms X and agreed a symbolic payment for her distress. An investigation by us would add nothing further.

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How I considered this complaint

13. I considered the complaint to us, the Council’s responses to the complaint and documents described in this statement.
14. 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 law and guidance

15. 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 council can do this.

16. 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 from the date of the transfer, whichever is the later date. (Regulation 15, Special Educational Needs and Disability Regulations 2014)  
17. Councils have a duty to provide accommodation for any child in need in their area who appears to them to need accommodation because:

• there is no-one who has parental responsibility for the child;
• the child is lost or abandoned; or
• the person who has been caring for the child is prevented, whether permanently or temporarily and for whatever reason, from providing suitable accommodation or care.

A child accommodated in this way is a ‘Looked After Child’ (LAC). (Section 20, Children Act 1989)

18. The council may not provide accommodation under Section 20 if the person who has parental responsibility objects. (Section 20(7), Children Act 1989)
19. There is a three-stage procedure for councils to follow for complaints about children’s social care services. Statutory guidance, (Getting the Best from Complaints), explains councils’ responsibilities in more detail. The statutory children’s complaints procedure provides children, young people and those involved in their welfare with access to an independent, thorough and prompt response to their concerns. If a council has investigated a matter under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it.

Summary of key facts

20. The chronology below is from the Council’s independent complaint investigation report at stage two of the statutory complaint procedure. The stage two report upheld or partially upheld the complaints. The stage three report upheld all the complaints. Ms X received an apology and the Council offered a £400 payment to reflect avoidable distress and time and trouble.

Background

21. Y and Z are siblings with special educational needs. They both have EHC Plans. Their Plans of January 2022 were maintained by a different local authority. The educational placements for Y and Z are two independent special schools; Y is a day pupil and Z is a weekly term-time boarder.

2022

22. The family moved to Oxfordshire in February. The previous local authority and Z’s school informed the Council.
23. Internal emails and notes indicate case officers would need to submit the residential element of Z’s school placement to the Council’s funding panel.
24. Z’s annual review meeting took place in April. His school confirmed a day placement was available from September.
25. Y’s annual review meeting took place in June. The Council emailed Ms X a copy of her existing EHC Plan, draft amended Plan and a letter following the annual review meeting.
26. In July, Ms X provided her comments on Y’s draft EHC Plan.
27. In August, the Council emailed Ms X saying the funding panel had decided Z could remain at his current school as a day student from September. Ms X told us the taxi company informed her at the start of September that Z would be transported to and from school daily and not weekly. However, Z continued to board at school despite the Council and taxi company saying otherwise.
28. The Council issued Z’s draft EHC Plan on 6 September.
29. Y’s final Plan was issued on 28 September.
30. Z’s final Plan was issued on 9 November.
31. Ms X and the Council attended mediation. A social worker spoke with Z about how he would feel if the residential part of his education was removed. Ms X told us this caused Z huge anxiety for an extended period.
32. Ms X appealed Z’s final Plan in December. During mediation, the Council said it would only pay for Z’s residential provision if he became a looked after child.
33. Z’s school continued to allow him to attend as a weekly boarder without the Council funding this. Ms X told us she had promised she would pay the residential fee if she lost the Tribunal. (the Council has now made the back payments).

2023

34. In January Ms X appealed Y’s final EHC Plan. She appealed the removal of the specifics of speech and language therapy, occupational therapy and a learning support assistant.

The Council’s responses to Ms X’s complaint

35. Ms X used all stages of the Council’s statutory complaint procedure.
36. The stage two report upheld or partially upheld the complaints. Ms X escalated her complaints to stage three.
37. The stage three report upheld all the complaints. The report concluded that “the regulatory requirements for this child (Z) to be cared for under looked after status do not apply here… it would have had significant implications for the parental rights and duties of his mother and would imply he was not being appropriately cared for within the family, regarding which there was no evidence offered. There was no question in the panel’s view that this had been significantly and inappropriately misunderstood and mishandled.”
38. Ms X received an apology from a senior manager and the Council offered a £400 payment to reflect her avoidable distress and time and trouble. The Council also confirmed it was organising a review of training to ensure staff understood the legal issues around provision of residential education and looked after child status.

Findings

The Council failed to meet statutory deadlines for transferring her children’s Education, Health and Care Plans (EHC Plans) when they moved to Oxfordshire from a different area

39. The arrangements set out in the SEND Regulations require the Council to ensure Y and Z’s EHC Plans were reviewed within 12 months of a previous review or within three months of the family moving to Oxfordshire, whichever date is later. In Y and Z’s cases, the Plans maintained by the previous authority were dated January 2022. So the latest applicable date for Oxfordshire to complete the annual review process and issue final amended Plans was January 2023. There is no fault because final amended Plans were issued for both children in September and November 2022. This is in line with legal requirements and gave Ms X rights of appeal to the SEND Tribunal which she used. There is no fault.

The Council threatened to make Z a looked after child because its policy was that if a child received residential provision, that child became looked after automatically.

40. The Council upheld this complaint. The Council was at fault; staff should have been aware of when the legal duty to provide accommodation applied and that Z could not simply “become” a LAC without Ms X’s consent when there were no concerns about welfare or parenting. Ms X clearly objected to the Council’s suggestion and without parental consent, the Council would have needed to apply to court for a care order. The stage three report found there were no concerns about Ms X’s parenting abilities to justify this. The statements by officers caused Ms X avoidable distress.
41. The Council has already apologised and taken appropriate action to deliver training to staff about when looked after status applies and offered a payment of £400 to reflect the avoidable distress to Ms X and Z. This is appropriate to remedy the injustice and to minimise the chance of recurrence.

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Final decision

42. There was no delay in the process of reviewing Y and Z’s Education, Health and Care Plans when they moved to Oxfordshire. There was fault by council officers in telling Ms X that Z would need to become a looked after child for him to continue to board at school. This caused Ms X and Z avoidable distress. The Council has taken appropriate action to remedy the injustice including an apology and training for relevant staff.
43. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman