Summary: Ms X complained about the Council’s handling of her son, W’s, Education, Health and Care Plan after she and W moved into its area. The Council was at fault. This caused Ms X frustration and upset and meant W missed out on education and special educational provision. To remedy their injustice, the Council will pay Ms X £2000.

The complaint

1. Ms X complained about the Council’s handling of her son, W’s, Education, Health and Care (EHC) Plan after she and W moved into its area. Specifically, Ms X complained the Council:
1. Did not contact the council whose area she moved from often enough to complete W’s EHC Plan transfer;
2. Delayed arranging tuition for W between March and May 2024, once the transfer was complete;
3. Did not arrange different provision when the tutor stopped working with W in June 2023;
4. Did not secure the special education in W’s EHC Plan while they attended a school between November 2023 and April 2024;
5. Did not review W’s EHC Plan as it should have;
6. Delayed seeking specialist assessments to inform W’s EHC Plan; and
7. Asked her for proof of identity when she made a subject access request.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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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What I have and have not investigated

7. The Information Commissioner's Office considers complaints about subject access requests. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about subject access requests we normally consider to expect the person to refer the matter to the Information Commissioner. Ms X can reasonably complain to the ICO about the Council requiring ID from her before responding to her subject access request. Therefore I have not investigated part (g) of her complaint.
8. 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). Ms X complained to the Ombudsman in June 2024 but she complains about matters dating back to early 2023. This means parts of her complaint are late.
9. I have seen no good reason why Ms X could not have complained to us earlier so I cannot investigate the whole period she complained about. I will use my discretion to investigate from May 2023 to May 2024. This covers the 12 months before the date of the Council’s last substantive response to Ms X’s complaint. I therefore have not investigated parts (a) and (b) of Ms X’s complaint.

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How I considered this complaint

10. I have considered:
• all the information Ms X provided and discussed the complaint with her representative;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
11. Ms X and the organisation 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

Alternative 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 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)

Education, Health and Care Plans

14. 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. Section F contains the special educational provision the child needs, while section I names the school or type of school the council has decided the child will attend.
15. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the SEND tribunal or the council can do this. 

Special educational provision

16. 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)  
17. 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. 

EHC Plan annual reviews

18. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews.
19. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
20. If a council decides to amend an EHC Plan, it sends a draft amended version of the Plan to the child’s parents or the young person. The council also sends the draft amended Plan to potential new schools if it is considering changing the child’s placement. Following comments and consultations with schools, the council issues the final amended EHC Plan. Case law sets out this should happen within 12 weeks of the date of the review meeting.

Transfer of EHC Plan between councils 

21. Where a child or young person moves to another council area, the ‘old’ council must transfer the EHC Plan to the ‘new’ council.
22. The new council must review the EHC Plan either within 12 months of its creation or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)  

Reassessments

23. A child’s EHC Plan may need new professional advice as their needs and circumstances change. If the advice necessary is limited in scope, the council may obtain it and then hold an annual review to consider amendments to the Plan. If the EHC Plan needs substantially, the council may decide to carry out a reassessment, which should take no more than 20 weeks to complete.
24. As part of the reassessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes: 

• the child’s educational placement; 
• medical advice and information from health care professionals involved with the child; 
• psychological advice and information from an Educational Psychologist (EP); 
• social care advice and information; 
• advice and information from any person requested by the parent or young person, where the council considers it reasonable; and 
• any other advice and information the council considers appropriate for a satisfactory assessment. 

25. The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.
26. A child’s parents can also ask the Council to carry out a reassessment. The Council must consider the request and issue a decision setting out whether it will do the reassessment. There is a right to appeal to the SEND Tribunal against a decision not to carry out reassessment.

What happened

Background

27. W previously lived in another council’s area (council B) and was on roll there at a mainstream school. In early December 2022, council B issued W’s first EHC Plan. The Plan noted W has difficulties with language, communication and making and maintaining relationships. The special educational provision in the Plan was limited in scope and said W needed:
• Two 15 minute sessions per week to develop their social communication skills;
• The use of social stories if needed;
• Support to revise previous learning on writing skills;
• Access to a social thinking resource;
• A sensory diet alongside sensory activities for ten minutes per day; and
• A 15 minute session per day to develop their motor skills.
28. Ms X moved to the Council’s area around the same time and W left their school. Council B delayed transferring W’s EHC Plan to the Council until March 2023.

May 2023 to May 2024

29. Around the same time, the Council agreed W’s EHC Plan was not an accurate reflection of their needs and that it needed to seek professional advice to inform any changes. It referred W to its complex communication needs (CCN) team for an assessment in early May.
30. The same day, Ms X asked the Council about seeking educational psychologist (EP) and Occupational Therapy (OT) assessments.
31. A few days later, the CCN team confirmed it could see W in September.
32. The Council began looking for new mainstream schools for W in the meantime. It told Ms X that any placement it found would be temporary for the purpose of getting updated assessments of W’s needs.
33. The Council arranged for W to receive home tutoring while it was finding them a school. The tutoring stopped around mid-June.
34. In mid-September 2023, the Council found a specialist school (school C) that would accept W for one term. Case notes show the Council planned to obtain a new EP assessment for other assessments to happen as needed.
35. Ms X asked the Council about getting an OT and Speech and Language Therapy (SALT) assessment for W. In late September 2024, the Council told Ms X she could ask her GP to refer W for an OT and SALT assessment, or she could ask the Council to carry out a full reassessment of W’s needs. The Council says it did not agree to commission the assessments because W was not using its OT or SALT services.
36. W began attending school C in early November 2023. School C later agreed an extension on the placement to Easter 2024. The Council continued looking for a permanent school placement for W.
37. Ms X’s representative told me W sat in a room with the headteacher for most of the school day and so did not receive the special educational provision in their EHC Plan. The representative said this happened for most of the time W attended school C because it was not suitable for their needs.
38. An educational psychologist began assessing W at school C in early December 2023. They updated the Council on the assessment and asked if W had been referred to SALT and if the CCN team had assessed W yet. The EP said it would be good to arrange OT assessments too.
39. The Council received W’s EP assessment in late December and in mid-January 2024, it issued a notice to amend W’s EHC Plan to incorporate that assessment.
40. After a question from Ms X about what assessments would happen next, the Council said that any other assessments could be arranged by W’s next school placement.
41. It later told Ms X she should speak to W’s GP about OT and SALT assessments when she talked to the GP about an ADHD assessment. Ms X confirmed she would speak to W’s GP and asked the Council for an update on the CCN and OT assessments.
42. In mid-February 2024, Ms X told the Council W was struggling at school C. She asked the Council to hold an emergency annual review. In response, the Council asked school C to arrange an annual review.
43. In late February 2024, Ms X complained to the Council. Her complaint included that school C was not delivering the special educational provision in W’s EHC Plan.
44. At the end of the month, the Council told Ms X that she should either go through W’s GP to obtain the assessments she wanted, or ask the Council to consider a reassessment of W’s needs.
45. In mid-March an independent school said it could offer W a place (school D).
46. School C had held an annual review meeting on behalf of the Council a week later.
47. The Council responded to Ms X’s complaint in late March 2024. It agreed to reimburse Ms X for the cost of W’s attendance at outdoor education centre one day a week before they started attending school C. Ms X remained unhappy and her representative sent the Council further comments on her complaint.
48. In late March 2024, the Council said W’s placement at school D would include SALT and OT assessments. It said it would contact its CNN team about W.
49. In mid-April 2022 W began a transition period in preparation for attending school D full time.
50. The Council issued W’s amended EHC Plan in May 2024.
51. The Council sent a second complaint response in late May 2024. It said:
• It had completed Ms X’s reimbursement for the forest school;
• It accepted W had not had any education between June and October 2023. The Council offered £1000 in recognition of the injustice that caused W; and
• It accepted it had delayed arranging assessments for W.
52. Ms X declined the £1000 as she felt the Council’s errors justified a higher amount.
53. Ms X’s representative told me W had OT and SALT assessments at the beginning of the autumn 2024 school term, and a CCN assessment a few weeks later.

Ombudsman investigations

54. The Ombudsman has recently completed several investigations about the Council. In response to those investigations, the Council agreed to:
• Issue a staff briefing on the alternative provision duty and review its procedures to ensure it arranges alternative provision as soon as possible when it accepts it owes a child the duty;
• Remind staff of the Council’s duty to secure the special educational provision in a child’s EHC Plan;
• Present an Ombudsman’s decision on a case involving a loss of education and special educational provision to the relevant Council scrutiny committee for discussion; and
• Put a process in place to track when EHC Plan annual reviews are due.

Findings

Alternative provision and special educational provision

55. The Council has a duty to arrange alternative provision when a child would not receive suitable education otherwise, while they are out of school because of exclusion, illness or other reasons. It also has a duty to secure the special educational provision in a child’s EHC Plan.
56. When W moved into the Council’s area they no longer had a school place. Therefore, the Council had to arrange alternative provision for them. The Council accepts that after the tuition stopped in June 2023, it did not arrange any further educational provision until November that year. This was fault. This meant W was without any education or any of the special educational provision in their EHC Plan for the equivalent of one term, taking into account school holiday periods.
57. When W started attending school C in November 2023, the Council no longer owed them the duty to arrange alternative provision. It still owed the duty to secure the special educational provision in W’s EHC Plan. Ms X’s representative says that when W started attending school C in November 2023, they spent most of their time in a room with the school headteacher instead of being with teachers and other children in a classroom. In line with the expectations set out in paragraph 17, when W started attending school C the Council should have checked the school was delivering W’s special educational provision. It did not do so, which was fault. This meant the Council failed to identify W was missing out on the full special educational provision in their EHC Plan.
58. This situation continued until W moved to school D in April 2024, which means they missed out on special educational provision for just over one term. The faults set out in paragraphs 56 and 57 also caused Ms X avoidable upset and frustration.

Assessments

59. The Council referred W to its CCN team in May 2023. Despite this and the offer of an initial appointment in September, W was not assessed until after the end of the period I am investigating; May 2024. This significant delay was fault. This caused Ms X avoidable frustration and uncertainty about whether the CNN assessment outcome would have altered the content of W’s EHC Plan had the Council obtained it in a reasonable time frame.
60. The Ombudsman cannot question a council’s decision if it is made without fault. When Ms X asked the Council if it could arrange an EP assessment in May 2023, the Council said any placement it would arrange would be temporary, to allow assessments to be carried out. The Council had probably decided the EP assessment should happen while W was attending a school. This is not unusual; specialists are able to make more tailored recommendations for special educational provision if they can see a child in an educational setting. The Council considered relevant information in coming to its decision, so it was not at fault.
61. In September 2023, the Council told Ms X she should contact W’s GP about an OT and SALT referral for an assessment. The Council made this decision because W was not using its SALT and OT services. The Council again considered relevant information in coming to its decision so it was not at fault.
62. The Council was, however, at fault for failing to recognise W was not yet using its OT service when Ms X asked the Council to carry out an OT assessment in May 2023. This meant it delayed directing Ms X to speak to W’s GP about an OT assessment or asking for a reassessment. This caused Ms X avoidable frustration but I cannot say, even on balance, that it caused W an injustice because even when the Council made its decision in September 2023, Ms X did not ask for a reassessment or contact W’s GP about a referral.
63. After the EP saw W in December 2023, they indicated W would benefit from SALT and OT assessments. The Council should have considered it and decided whether to obtain the assessments. There is no evidence the Council did this so on balance, I do not consider it did. This calls into question the Council’s January and February 2024 decisions to refer Ms X to W’s eventual permanent school and to suggest Ms X contact W’s GP about OT and SALT assessments or ask for a reassessment.
64. Once the Council identified a permanent school for W to attend, it confirmed the school would obtain SALT and OT assessments. Ultimately, W had the OT and SALT assessments in autumn 2024.
65. It is possible that, had the Council considered the EP’s advice properly, it would have commissioned the SALT and OT assessments itself and that they would have been completed sooner than autumn 2024. However, I cannot, even on balance, say this is what the Council would most likely have concluded. I must also consider that Ms X did not ask for a reassessment or speak to W’s GP when directed to do so by the Council in September 2023, January and February 2024. Therefore, the injustice is uncertainty for Ms X about what could have happened, but for the fault.

Annual reviews

66. When a child or young person with an EHC Plan transfers from another council’s area, the new council must review the Plan within twelve months of the date of its creation, or three months after the date of the transfer; whichever is later. W’s first EHC Plan dated from December 2022 so the Council needed to complete their annual review by December 2023. The Council did not do this, which was fault.
67. Instead, after the Council received the EP’s assessment report in December 2023, it issued an amendment notice and draft amended Plan in January 2024, incorporating the EP’s advice. However, it did so without consulting W, Ms X or school C and without holding an annual review meeting to discuss W’s needs. This was not in line with the annual review process set out in the guidance and regulations and was fault.
68. The Council did not finalise W’s amended EHC Plan because in mid-February 2024, Ms X asked for an emergency annual review. School C held an annual review meeting in March 2024 and the Council issued W’s amended final EHC Plan in May 2024. Overall this was within the 12 week timescale set out by caselaw so there was no delay. The Council was not at fault in how it progressed the emergency annual review.

Service improvements

69. As noted in paragraph 54, the Council has recently agreed to carry out several recommendations to improve its practice around alternative provision, special educational provision and annual reviews. Because of this, I am satisfied no further recommendations are necessary to improve the Council’s practice.

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Agreed actions

70. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Ms X for the frustration and upset she felt because of the faults identified in this decision. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Pay Ms X £400 to acknowledge the frustration and upset she experienced.
3. Pay Ms X £1600 in recognition of the impact of the lost education and special educational provision on W. This amount is in line with the Ombudsman’s guidance on remedies, taking into account the amount of education and special educational provision W missed out on, their ability to access the provision had it been in place, their age and other relevant factors.
71. The Council will provide us with evidence it has complied with the above actions.

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Final decision

72. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman