Summary: Ms X complained the Council failed to secure provision set out in Y’s Education, Health and Care Plan once they moved into its area. The Council is at fault for not securing Y’s provision, causing a loss of education. The Council has agreed to apologise, make a payment to recognise the loss of education and put provision in place and act to prevent recurrence.

The complaint

1. Ms X complains the Council has failed to put educational provision in place for her son, Y, after they moved into its area in March 2023. Ms X says she has had to constantly chase the Council, but it has only offered part-time tutoring hours and has not put any social interaction opportunities in place.

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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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

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What I have and have not investigated

6. 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.
7. For this reason, I have limited my investigation from when the Council was notified Y was moving to its area, up until Ms X brought her complaint to us in October 2024.
8. If Ms X also has concerns about how the Council has acted to secure educational provision for Y since October 2024, she would first need to raise them with the Council and give it an opportunity to respond.

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How I considered this complaint

9. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
10. Ms 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

11. A young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This sets out the young person’s needs and what arrangements should be made to meet them.
12. 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)  
13. 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

14. I have summarised below some key events leading to Ms X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
15. Y has SEN and his education is supported by an EHC Plan.
16. Ms X notified the Council that Y would be moving into its area in March 2024, giving more than 15 working days’ notice of the move. Ms X explained Y currently had an EHC Plan that had been issued by her current council and which she was in the process of appealing.
17. The Council had not yet secured the provision set out in Y’s EHC Plan by the time he moved into its area. At this point, Y’s EHC Plan provided for 1:1 additional adult support, differentiated learning objectives and strategies, small group social skills programmes, speech therapy and an Occupational Therapy (OT) programme of sensory activities with access to sensory equipment. Y’s EHC Plan named a mainstream school setting.
18. In March 2024 the Council arranged 1:1 tutoring sessions for Y which continued throughout the school year. The Council received daily summaries of the sessions in order to consider how well these were working and whether they needed to be amended.
19. The Council consulted with several local mainstream and specialist schools, all of which said they could not accommodate Y or could not meet his needs.
20. In April 2024, the Council arranged for Y’s EHC needs to be re-assessed in order to get a better understanding of his needs and how to meet them. However, it could not progress this to a new EHC Plan while the result of Ms X’s appeal to Y’s most recent EHC Plan was pending.

Analysis

21. The Council had a duty to secure Y’s EHC Plan provision from the time he moved into its area in March 2024. That it did not do so is fault and meant Y did not receive the education he was entitled to, which is injustice.
22. The Council consulted with 17 schools, both mainstream and specialist, during the timeline I have investigated but could not find a place for Y. Because of this, the Council decided to re-assess Y’s needs to get a better understanding of what setting would be most suitable for him. While it is clear the Council acted to try and secure provision for Y, that it did not do so is still fault and meant Y did not receive the provision he was entitled to, which is injustice.
23. The Council arranged 1:1 tutoring sessions for Y to mitigate the injustice, but this did not cover all the provision he was entitled to, such as an OT programme, access to sensory equipment, speech therapy and socialising opportunities. This means the injustice to Y, while reduced, continued across almost two school terms in the period I have investigated.

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Action

24. To remedy the injustice identified above, the Council should complete the following actions within one month of the date of this decision:
• Write to Ms X to apologise for the injustice caused by the failure to secure Y’s EHC Plan provision following his move into its area. 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 Ms X £800 to be used towards Y’s education in recognition of the failure to secure full EHC Plan provision for him between March 2024 and October 2024.
• Remind staff in its SEND team of the need to follow the SEND Regulations during the transferring in process.
• Put Y’s remaining EHC Plan provision in place, and write to Ms X to confirm how this will be delivered.
25. The Council should provide us with evidence it has complied with the above actions.

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Decision

26. I find the Council at fault for failing to secure Y’s EHC Plan provision when he transferred into its area, causing injustice. The Council has agreed to the recommended actions to remedy 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