Summary: Miss X complained that her child, Y, missed education when moving from another Council’s area. There was fault by the Council, as it delayed arranging the provision in Section F of an Education, Health and Care Plan when Y moved into its area. An apology, a payment to Miss X and a review of procedures to make sure the fault does not recur, remedies the injustice.

The complaint

1. The complainant, who I shall call Miss X, complains the Council delayed putting in place the provisions in an Education, Health and Care (EHC) Plan after a child moved into the area.
2. Miss X says her child missed education as his alternative provision stopped when he moved from the previous area.

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The Ombudsman’s role and powers

3. 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)
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 Miss X and the Council as well as relevant law, policy and guidance.
7. Miss 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

8. 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 the council can do this. 
9. 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)  
10. Miss X has 2 children with EHC Plans. The EHC Plan for one child was sent to the Council in April 2024, which the Council received.
11. The Council received an encrypted email from the other Council with Y’s EHC Plan on 8 April 2024. Miss X says she called the Council in April 2024 but there is no record of this. There is also a record of her sending a tenancy agreement, to prove her address, to the Special Education Needs Service at the Council.
12. The Council said that it received encrypted emails from the previous Council on 28 May and 17 July 2024. These contained the EHC Plan of Y but the Council was not able to open them to read the plan. The Council contacted the previous Council on 8 July to ask for the EHC Plan but says they did not manage to get it. In its response to Miss X’s official complaint, the Council apologised for not doing more at the time to get a copy of Y’s EHC Plan.
13. The Council received a copy of Y’s EHC Plan on 29 October 2024, after Miss X made an official complaint. In response to Miss X’s stage 2 complaint the Council offered Miss X a payment of £200 to cover the period from May 2024 when the first email was received until October 2024 when the EHC Plan was finally received.
14. In response to a first contact from the Ombudsman, the Council said ‘on revisiting this case, we recognise there had been a delay in providing Y with a provision as outlined in the ECHP. This missed provision occurred for the school months of June, July, September, and October 2024. We offered interim tuition when we realised the file had come in from November, whilst we made more permanent arrangements, Miss X turned this down. She took up a tuition offer on 18 December 2024 so then there was something in place. The family moved to a new Council area in December 2024’.
15. The file notes says that Miss X was offered tuition in November and there is an email from Miss X to the Council on 6 November to say she did not think the tuition was necessary. The notes of a further telephone call say Miss X says that Y would rather be in college but wanted more information about tuition available until he could take up a college place in September 2025.
16. The Council said Y started tuition on 26 February 2025, but it should have referred him to the tuition service when term started on 6 January 2025.
17. The Council has said ‘it kept the file for a little while to help try to continue secure a course for Y for September 2025, particularly as the move to the new area is likely to be temporary. The Council has secured a course for September 2025. Tuition will continue in the interim and then we will transfer the file once the EHC Plan has been finalised’.
18. There is clear evidence that Miss X and the previous Council contacted the Council in April 2024 to tell them that Y had moved into the area. The Council has accepted it was at fault and that Y has suffered injustice from the missed educational provision. My role is to decide a suitable remedy, in line with our guidance.
19. Our guidance on remedies says ‘where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• The severity of the child’s SEN as set out in their EHC plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
• Lost or delayed right of appeal to tribunal.
20. The Council accepts it should have offered educational provision for the summer 2024 term. And from September to November 2024 when Miss X declined the offer of tuition. In response to the Ombudsman’s initial contact the Council offered Miss X a remedy for missed provision of £250 x 6 months (June, July, September, October 2024, January and February 2025) which totals £1500. The council also acknowledged that because of the delay, college courses were all already underway, which Y did not have the opportunity to join, so an additional £250 has been added to this amount, bringing the total amount to £1750.
21. Y moved out of the Council’s area in December 2024. But the Council did not pass on the EHC Plan to the new Council. So, it should have arranged tuition for January and February 2025. Y did not receive educational provision for one term, 15 days after 8 April 2024, and then for 4 months (September, October, January and February.) I note Y did receive tuition for one day in February 2025 but for ease of calculation I shall class this as a complete month.
22. I consider that a remedy at the lower end of the remedy guidance is appropriate as although Y was in his GCSE year, the Council would not have had time to organise for him to sit exams when he moved to the area. I consider a payment of £900 for the summer 2024 term and £1200 for the 4 month period (as this is longer than a term) is appropriate. The additional £250 proposed by the Council because the of the lost of opportunity to join the college course and Miss X’s distress should also be paid, bringing the total to £2350. This should be used to benefit Y.
23. The Council should also review its procedures to ensure the fault does not recur.

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Action

24. Within one month of the date of the decision on this complaint the Council will:
• Apologise to Miss X. 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 its apology.
• Pay Miss X £2350 in total.
• Review its procedures to ensure the fault does not recur.
25. The Council should provide us with evidence it has complied with the above actions.

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Decision

26. I have completed my investigate and this complaint is upheld. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman