The Ombudsman's final decision
Summary: Mrs D complained the Council delayed adopting her daughter’s Education, Health and Care plan when they moved to the area. She also says the Council did not meet the provision outlined in her daughter’s Education, Health and Care plan. We find the Council was at fault as it failed to adhere to statutory timescales. It also failed to ensure Mrs D’s daughter received the provision outlined in her Education, Health and Care plan. The Council has agreed to our recommendations to address the injustice caused by fault.
The complaint
Mrs D complained the Council delayed adopting her daughter’s (Miss E) Education, Health, and Care (EHC) plan when they moved to the area. She also says the Council did not meet the provision outlined in Miss E’s EHC plan.
Mrs D says the Council’s failures have caused upset, distress and frustration. She also says Miss E’s confidence has deteriorated and her education has suffered.
The Ombudsman’s role and powers
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)
How I considered this complaint
I considered information from Mrs D. I made written enquiries of the Council and considered information it sent in response.
Mrs D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and statutory guidance A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 sets out the special educational provision needed by the child or young person. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
When a child or young person with an EHC plan moves into a local authority’s area, the EHC plan will need to be transferred to the new local authority.
As soon as the EHC plan has been transferred, the new local authority has the same legal duties as if they had issued the EHC plan themselves. The most important duty is to ensure the child or young person receives all the special educational provision specified in section F of their EHC plan. This is set out in Regulation 15 of the Special Educational Needs and Disability Regulations 2014.
The new local authority must review the EHC plan within either 12 months from the EHC plan being made or last reviewed, or three months from the date of the transfer, whichever is the later.
Local authorities must decide whether to maintain the EHC plan in its current form, amend it, or cease to maintain it within four weeks of the review meeting. The local authority should issue the final EHC plan as soon as practicable and within eight weeks of the date it sent the plan to the parents/young person with the proposed amendment.
What happened Miss E has special educational needs. She had an EHC plan issued by a different council (Council Z).
Miss E started attending a school in the Council’s area in September 2020, but she did not officially move to the area until June 2021. Even though she was attending the school, her EHC plan listed a different educational setting.
Council Z contacted the Council on 9 July 2021 and said Miss E had moved into its area.
The Council held an annual review of Miss E’s EHC plan on 29 September. Miss E said teachers had failed to print and enlarge handouts and exam papers for her, she did not receive any rest breaks, and no one checked on her. The school said Miss E was receiving key worker support weekly, and she was receiving one to one teaching assistant support in drama.
Mrs D emailed the Council on 18 November. She said she had made a formal complaint to the school about its failure to support Miss E and adhere to the provision in her EHC plan. The Council said it would refer the matter to a relevant officer to respond. There is no evidence the Council responded to Mrs D’s email.
Mrs D complained to the Council on 7 February 2022. She said it had failed to secure the provision in Miss E’s EHC plan. She said Miss E had not received one to one support, access to a buddy system and teachers had not adapted their teaching style for her special educational needs.
The Council responded on 9 March. It said it reviewed Miss E’s EHC plan within three months of being transferred, but it had failed to adopt and issue the plan following the annual review meeting. It apologised and said to resolve the complaint, it would amend and adopt Miss E’s EHC plan. It also said it would liaise with the school to ensure it was delivering the provision appropriately.
Mrs D referred her complaint to stage two of the Council’s complaints procedure on 13 March. She said it failed to acknowledge the impact its failings had on Miss E and the family. She said Miss E’s confidence had deteriorated and she had not received proper one to one support.
The Council issued its final response to Mrs D’s complaint on 14 April. It sincerely apologised for the distress caused. It said it would deliver training to the special educational needs team to ensure they fully understood the process.
The Council issued a draft EHC plan on 27 April. Mrs D sent in her comments, and the Council issued the final amended EHC plan on 24 May.
Miss E finished school in June 2022 and is now attending university.
Analysis The Council failed to act in accordance with the legislation and statutory guidance. This is fault. It should have decided whether it was going amend Miss E’s EHC plan within four weeks of the annual review meeting, which was 27 October. It did not do so until six months later. The final EHC plan was not issued until 24 May, which is eight months after the annual review. This was not long before Miss E left school.
The Council’s delays have caused Mrs D frustration and upset. It also caused Miss E to lose out on provision. The Council made some amendments to Miss E’s EHC plan and included some recommendations from a speech and language therapist. This provision would have been in place at least five months earlier if the Council had acted without fault.
The Council became responsible for Miss E’s EHC plan and the provision in it as soon as it was transferred. This was 9 July. It is clear from the annual review notes, and Mrs D’s email of 18 November, there were concerns the school was not implementing the provision in Miss E’s EHC plan. The Council has not been able to provide me with any evidence it contacted the school at any stage to ensure the provision was in place. This is fault. The Council also failed to respond to Mrs D’s email when she made it aware she had complained to the school.
The provision set out in Miss E’s EHC plan was that she required one-to-one support in core lessons, as well as a differentiated timetable and extra support at structured times. When the Council responded to my enquiries, it said the school advised recruitment issues impacted the support in place, specifically teaching assistant support. Mrs D complained to the school on two occasions about its failure to provide this support. The school upheld Mrs D’s complaint and accepted it failed to follow Miss E’s EHC plan, especially in relation to one-to-one support.
The Council’s failure to ensure Miss E received the provision in her EHC plan is fault. This means Miss E missed out on what she was legally entitled to. The Council’s fault also caused Mrs D an injustice, as she was put to time and trouble chasing matters up. I welcome the Council has apologised to Mrs D and implemented training to prevent a recurrence of fault, but I do not consider its actions go far enough to reflect Miss E’s and Mrs D’s injustice.
The Council received Miss E’s EHC plan at the end of the summer term and so it is unlikely it would have secured the necessary provision before she broke up for the summer holiday. However, I would have expected it to make sure the provision was in place from September 2021 until she left school in June 2022. I recommend the Council pays £2,175 (£300 per school month) to remedy the impact of the missed provision. I also recommend the Council makes a further payment to Mrs D for her time and trouble and frustration.
Agreed action
To address the injustice caused by fault, by 14 November 2022 the Council has agreed to: Issue a further apology to Mrs D and Miss E.
Pay Miss E £2,175 to remedy the lost provision. We would suggest she uses this payment for her educational benefit.
Pay Mrs D £300 for her time and trouble and the frustration caused.
Final decision
There was fault by the Council, which caused Mrs D and Miss E an injustice. The Council has agreed to my recommendations and so I have completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman