Summary: Mr X complained the Council failed to secure the provision set out in Y’s Education, Health and Care Plan when she moved into its area. We find the Council at fault for failing to secure the provision set out in Y’s plan, causing a loss of education and uncertainty The Council has agreed to apologise, make a payment to recognise the injustice and act to prevent recurrence.

The complaint

1. Mr X complains the council failed to secure the provision set out in Y’s Education, Health and Care (EHC) Plan after she moved into its area in September 2023. Mr X says this has caused real distress and means Y has missed out on the educational and social opportunities she was entitled to.

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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 law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
7. 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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What I have and have not investigated

8. We cannot usually investigate complaints unless we are satisfied the Council has had a chance to look into them first. This includes events that are linked to or ongoing from the complaint that has been brought to us.
9. For this reason, I have limited my investigation from when the Council was notified Y was moving to its area in September 2023, up until Mr X brought his complaint to us in July 2024.
10. I understand Mr X also has concerns about how the Council has acted to secure educational provision for Y since July 2024. If Mr X wants us to look into these concerns, or issues around the EHC Plan review that took place in July 2024, he would first need to raise them with the Council and give it an opportunity to respond.
11. If Mr X was unhappy about the content of Y’s EHC Plans, including the named provision or educational setting, he had the right to appeal them to the SEND Tribunal. I have not investigated the content of Y’s EHC Plans, just how the Council acted to secure the named provision.

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How I considered this complaint

12. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
13. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and policy

14. A young person with special educational needs (SEN) may have an EHC Plan. This sets out the young person’s needs and what arrangements should be made to meet them.
15. 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 (SEND) Regulations 2014)  
16. The new council may, on transfer of the EHC Plan, bring forward the arrangements for the review of the plan. The new council must tell the child’s parent, within six weeks of the date of the transfer, when they will review the plan.

What happened

17. I have summarised below some key events leading to Mr X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
18. Y is a looked after child who has SEN, and her education is supported by an EHC Plan.
19. On 18 September 2023, Y’s old council contacted the Council to let it know Y would be moving into its area on 28 September and provide it with her EHC Plan and relevant paperwork. Y’s EHC Plan provided for 3-6 hours of Speech and Language Therapist (SALT) sessions per term to support her education team to deliver an effective communication programme, a high level of one-to-one adult support, a highly structured routine, frequent sensory breaks, a targeted social skills programme, and a structured one to one or small group literacy and maths programme. The Council assigned a case officer to oversee Y’s transfer.
20. The Council made enquiries to find Y a school place but was not successful by the time Y moved into its area.
21. On 9 October, the 15 working day deadline for the Council to secure EHC Plan provision passed but provision had not yet been put in place.
22. The Council continued to consult with schools, but was not able to find one that could accommodate Y or meet her EHC Plan provision. It also consulted with tuition services to try and identify one who could deliver sessions to Y to mitigate the time she was spending out of school.
23. In January 2024, the Council continued to consult with schools but could not find one that could accommodate Y or meet her EHC Plan provision. It also contacted another tuition service to see if they could provide interim tutoring support for Y and they agreed they had capacity to do this.
24. Mr X complained to the Council as Y had been living in the Council’s area since September 2023 but had not received any education while she was there. Mr X said this was causing real frustration and was disruptive for Y. Mr X asked the Council to secure a place at a school for Y and provide interim tuition to address her immediate needs.
25. The Council responded to Mr X’s complaint to explain it was taking longer than expected to find a school that could take Y as there were capacity issues in specialist schools in the area, but it was working to resolve this. The Council said it would issue a final EHC Plan for Y on the Council’s own format shortly and would update this further as soon as a school place was identified. The Council also explained it had now received an agreement for 15 hours of tuition per week for Y and would confirm the start date of this shortly.
26. On 5 February 2024 the Council issued a final EHC Plan for Y. This mirrored the previous EHC Plan but was transferred across to the Council’s own EHC Plan template. It did not name a specific school but said this would be a specialist school setting.
27. Y began to receive 15 hours per week of direct tuition at home from February 2024.
28. The Council continued to consult with schools, but still was not able to find one that could accommodate Y or meet her EHC Plan provision.
29. Mr X asked the Council to reconsider his complaint as Y still did not have a school place.
30. The Council responded to Mr X’s complaint to explain it had been proactively consulting with schools, but accepted the delays meant Y had missed a full school term of education. The Council agreed it had not made appropriate education available for Y since she moved into its area and apologised for this. The Council said it would consider making a payment to address the loss of education and to recognise the time and trouble Mr X had been put to in pursuing his complaint.
31. In July 2024, the Council met with a school who said they were currently at full capacity but could admit Y from September 2025 and, in the meantime, provide an interim package of support alongside the tuition she was already receiving at home. That month, the Council held an annual review of Y’s EHC Plan.

Analysis

32. The Council was informed Y would be moving to its area on 18 September 2023 and had a duty to secure her EHC Plan provision from 9 October 2023. The Council did not secure provision for Y, which is fault and meant she did not receive the education she was entitled to, which is injustice.
33. The Council consulted with 26 schools, including independent schools, during the timeline I have investigated but was unable to find a place for Y. It also consulted with various tuition services to try and mitigate the impact on her. While it is clear the Council did act to try and secure provision for Y, that it did not do so is fault and meant Y did not receive the provision she was entitled to, which is injustice.
34. Y did not receive any provision at all for a full school term. However, the injustice continued beyond this. While the Council mitigated the continued injustice from February 2024 by providing 15 hours of tuition per week, it still did not secure the provision set out in Y’s ECH Plan. This means the injustice to Y, while reduced, was ongoing throughout the remainder of the period I have investigated.
35. When responding to Mr X’s complaint, the Council accepted it had caused an injustice to Mr X and Y and said it would consider a remedy. However, it did not put any remedy forward. This is poor practice and amounts to fault. As a result, Mr X was put to more time and trouble pursuing his complaint than may have been necessary if the Council had offered a remedy, which is injustice.

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Action

36. To remedy the injustice identified above, the Council has agreed to complete the following actions within one month of the date of this decision:
• Write to Mr X to apologise for the injustice caused by the identified faults. 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.
• Pay Mr X £900 to be used towards Y’s education in recognition of the failure to secure any EHC Plan provision between September 2023 and February 2024.
• Pay Mr X £600 to be used towards Y’s education in recognition of the reduced provision she received between February 2024 and July 2024.
• Pay Mr X £100 to recognise the uncertainty, and time and trouble he was put to throughout this process.
• Remind staff in its SEND team of the need to follow the SEND Regulations during the transferring in process.
• Remind staff dealing with complaints of the importance of putting forward a tangible remedy as a conclusion to the complaints process when identifying fault and injustice.
37. The Council should provide us with evidence it has complied with the above actions.

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Decision

38. I find fault the Council at fault for failing to secure Y’s EHC Plan provision when she transferred into its area, causing injustice. The Council has agreed to actions to remedy the identified injustice and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman