Summary: Ms C complains the Council failed to follow the correct transfer procedures when X moved into the area with an Education, Health and Care (EHC) Plan. Ms C also complains the Council failed to provide the education set out in the EHC Plan. The Council failed to provide X with education it had a duty to provide and in the transfer of the EHC Plan. This caused X to miss education. To remedy the complaint the Council has agreed to make a symbolic payment and service improvements.

The complaint

1. Ms C complains the Council delayed reviewing her child’s, X’s, Education, Health and Care Plan (EHC Plan) when she moved into the area. Ms C also complains the Council failed to provide the education set out in X’s EHC Plan.
2. Because of these failures Ms C says X has missed education and as a result missed doing her GCSEs. This caused distress to both Ms C and X.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. 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. I considered evidence provided by Ms C and the Council as well as relevant law, policy and guidance.
7. Ms C 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

What should have happened

8. 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 Regulations 2014)  
9. The review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
10. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer. (Regulation 18 of the Special Educational Needs and Disability Regulations 2014)
11. 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)  
12. 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.

What happened

13. X has an EHC Plan. X moved to Suffolk in August 2023 and her EHC Plan transferred to Suffolk Council on 7 September 2023. A different Council reviewed X’s EHC Plan in February 2023. The Council sent a consultation letter and the EHC Plan to high school, B, on 3 October. B responded a couple of weeks later raising concerns about its ability to meet X’s educational needs as set out in the EHC Plan. Following an email exchange with the Council, B accepted X and agreed to have a review after the first three months.
14. The Council accepts that when it was aware X had an EHC Plan it should have reviewed and transferred the EHC Plan to a Suffolk plan but failed to do so. The Council says that although the EHC Plan was not in the correct format the information was still available to use.
15. X started attending B on 3 December 2023. On 18 January 2024 Ms C contacted B raising her concerns that X was receiving a reduced timetable and not all the provision set out in section F of the EHC Plan.
16. This had occurred without any consultation with her. Ms C raised concerns that X was in her GCSE year and needed educational support. She also complained that phone messages and emails remained unanswered. Ms C said she wanted to be involved in all future meetings and decision making. The school responded the next day to discuss matters with Ms C.
17. X was in year 11 and due to transfer to a post 16 place for the year starting September 2024. The school arranged a EHC Plan review in February 2024. The Council says this was to also look at post 16 provision. B only invited X’s father to this meeting. B said it could not complete the meeting because of X’s father’s behaviour. The Council accepts that both X’s parents hold parental responsibility and although separated both should have been invited to the review.
18. Ms C says the school did not provide X with a full timetable. The Council says it was not aware X was on a reduced timetable. The Council does however accept, as it is unable to provide evidence to the contrary, that X did not receive Speech and Language Therapy (SaLT) while at B.
19. On 18 April, X moved back to live with Ms C. Ms C told the Council about the move on 29 May.
20. The Council says as part of ongoing improvements it has a new team which considers all new “move ins”. It confirms “next steps” which includes oversight by the Area Manager responsible for reviewing and moving children and young people onto the Council’s EHC Plans or reassessments.
21. As part of its complaint response it apologised to Ms C and offered a symbolic payment of £500.

Was there fault causing injustice?

22. The Council has accepted it did not review X’s EHC Plan when she moved to Suffolk. This was not in line with the duties set out in:-
• Section 15 Special Educational Needs and Disability Regulations 2014, for the action a council should take when a young person with an EHC Plan moves into their area;
• Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176, the duty to review an EHC Plan at least yearly;
• Regulation 18 of the Special Educational Needs and Disability Regulations 2014 the duty to review where a young person is due to transfer from secondary school to a post-16 institution.
23. The Council failed to provide X with education from 15 working days after she moved into the area. The Council should have started educational provision from 29 September. The failure to provide education from 29 September to 2 December 2023 is fault.
24. The Council should have reviewed X’s EHC Plan in February 2024. This was a year since a Council reviewed X’s EHC Plan. The Council says it tried to review X’s EHC Plan but could not because of her father’s behaviour. However it did not engage with Ms C who also had parental responsibility and had already contacted the school about her concerns, asking for involvement in any discussions about X. The Council also did not consider whether it could complete the review in a different format or without the views of the parents. The failure to involve Ms C in the review process was not in line with Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176 and is fault. This caused Ms C time, trouble and distress that the Council did not take her views into account when it should have.
25. The Council cannot act when it is unaware of an issue. However I consider on balance, had the Council completed a review in February it would have been aware X was not receiving all the education and SaLT set out in section F. This is based on the email sent by Ms C to the school at the time about the reduced timetable, and the failure of the Council to provide any evidence to the contrary. The failure to provide education set out in section F, is not in line with Section 42 Children and Families Act and is fault.
26. The failure to review the EHC Plan also resulted in the Council failing to properly consider post 16 education which would start in September 2024.
27. I have considered our remedies guidance for the period between 29 September to 2 December, when X did not receive the education she should have; and the period February 2024 when the Council ought to have reviewed X’s EHC Plan, to 20 April 2024 when X returned to live with Ms C and consider the remedy should be at the higher end of the tariff (£2400 per term) set out in our Guidance on remedies - Local Government and Social Care Ombudsman for missed educational provision. This is because:-
• X was in year 11 an important academic year;
• X did not receive SaLT;
• there was a limited period to catch up because of the closeness of the exams;
• although X moved out of the area consideration of X’s post 16 education would have provided information to the area X moved into;
• Ms C made representations at the time that the reduced timetable was significant.

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Action

28. I have found fault causing injustice. The Council has agreed to take the following actions to remedy the personal injustice caused and to make service improvements.
29. Within one month of the final decision the Council will:-
1. Apologise (referring to our Guidance on remedies - Local Government and Social Care Ombudsman ) to Ms C for failing to involve her in decision making around X’s education and reviews; review X’s Education, Health and Care (EHC) Plan and the shortfall in X’s education and pay her a symbolic payment of £150;
2. make a symbolic payment of £3065 for X’s benefit. This consists of the impact of 16 ½ weeks of missed education and Speech and Language Therapy (SaLT) provision.
30. Within three months of the final decision the Council will:-
1. provide a copy of the new policy about how the Council deals with children and young people who enter the Council with an EHC Plan;
2. remind staff and provide training by way of a staff circular, team meeting, supervision, or sessions so relevant staff are aware of the new policy and its implications;
3. remind staff and provide training by way of a staff circular, team meeting, supervision, or sessions about who should be invited to EHC Plan reviews and what steps to take when engagement from parents frustrates the review process.
31. The Council should provide us with evidence it has complied with the actions above.

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Decision

32. I find fault causing injustice. I consider the actions above are suitable to remedy the complaint. I have now ended my investigation and closed the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman