The Ombudsman's final decision
Summary: Ms X complained about the time taken by the Council to provide her child with a school placement and put in place the special educational provision in his Education, Health and Care Plan after she moved to the Council area. This meant her child missed out on education and support he should have received. We found the Council at fault. The Council agreed to apologise to Ms X and make a financial payment for the loss of education to her child.
The complaint
Ms X complains the Council did not provide her son with an educational placement or the support in his Education, Health and Care plan when she moved into the Council area.
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 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) 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
As part of this investigation I considered the information provided by Ms X and the Council. I discussed the complaint with Ms X over the telephone. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Ms X and the Council for comments.
Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I found
Law and guidance 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.
The EHC Plan is set out in sections which includes Section F: The special educational provision needed by the child or the young person.
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) 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) What happened Ms X’s son Y has special educational needs. Ms X moved into the Council area in early May 2023. Before moving Ms X made the Council aware Y had an EHC Plan.
Over the next few months Ms X said she tried to contact the Council as Y did not have a school placement and was not getting the provision in his EHC Plan.
In August 2023, Ms X complained to the Council as Y was still without a school placement and any of the Section F provision in his EHC Plan.
In late October 2023, the Council responded to Ms X’s complaint. The Council apologised for the delay and recognised its communication with Ms X had been poor. The Council told Ms X it would convert Y’s EHC Plan into its own Council format by 14 November 2023.
Ms X asked the Council to consider her complaint further in mid-November 2023. Ms X said the Council had not converted Y’s EHC Plan into its own format and it had been over six months since the Council received a copy of Y’s EHC plan from their previous council. Ms X said Y sill did not have a school placement.
In early December 2023, the Council provided Ms X with its final response. The Council recognised it did not convert Y’s EHC Plan into its own format by 14 November 2023. The Council said it had consulted with schools to secure Y a placement. The Council offered Ms X £2,400 to recognise the loss of education to Y for the Autumn school term, from September to December 2023. The Council also offered Ms X £500 to recognise the distress caused to her and a further £500 for the time and trouble she experienced. The Council said it was reviewing its processes for families moving into its area.
Ms X remained dissatisfied and complained to the Ombudsman.
In early February 2024, Y started a new school placement.
In response to my enquiries the Council recognised Y did not receive education or the provision in his EHC Plan from the start of the new school term in January until he started his new school placement in early February 2024. The Council said this amounted to five weeks. The Council offered a further £925 to recognise the loss of education to Y for this period.
The Council also said it looked at its processes and had taken steps to ensure that once a young person moves into the Council area with an EHC Plan, consultations are sent immediately to prospective schools using paperwork from the previous council. The Council will then convert the EHC Plan into its own format following the next annual review.
Analysis The Council was at fault for not putting in place education or the special educational provision in Y’s EHC Plan. This has caused Y injustice as he has been without the support he should have been for a significant period of time.
The Council has accepted it was at fault and for the Autumn school term, from September to December 2023, offered Ms X £2,400 to recognise the loss of education to Y. The Council also recognised Y did not receive any education or special educational provision from the start of the school term in January 2024 until Y started his new school placement in February. The Council has offered a further £925 to recognise the loss of education for this period. The Council calculated this figure on the basis of £2,400 per term.
The Ombudsman’s guidance on remedies recommends a remedy payment of between £900 to £2,400 per term to acknowledge the loss of educational provision. I am satisfied the remedy payment the Council has offered for the period covering September 2023, to February 2024, is in line with the Ombudsman’s guidance.
While the Council has recognised it was at fault for not putting in place education and special educational provision for Y, and this is welcomed, it has not offered Ms X a remedy for the period of May to July 2023. Y moved into the Council area in May 2023 and did not receive any support for the rest of that school year, i.e. to July 2023. This amounts to half a term of lost provision.
The Council also recognised Ms X suffered distress as a result of her child not getting the support he should have. The Council offered Ms X £500 to acknowledge the distress she experienced. I am satisfied this is an appropriate remedy for the injustice caused to Ms X and is in line with the Ombudsman’s guidance.
The Council offered Ms X £500 to acknowledge the time and trouble she experienced. The Council recognised there were delays in responding to Ms X’s complaint and with its level of communication with her. I am satisfied this is an appropriate remedy for the injustice caused to Ms X.
Normally we may also ask the Council to carry out service improvements in a case such as this. The Council has put in place measures to stop delays like this happening in the future. This is welcomed. These include sending consultations to schools immediately when a child moves into its area, using the paperwork from the old council. Therefore I do not consider a service improvement is necessary.
Agreed action
Within one month of my final decision the Council agreed to carry out the following: Provide a written apology to Ms X for not providing Y with education or special educational provision from May 2023 until February 2024.
Pay Ms X £1,200 to recognise the lost provision to Y from when he moved into the Council area in May until the end of the 2022/2023 school year in July 2023.
If it has not done so already, pay Ms X the financial payments it already has offered her. This includes the £2,400 for loss of education between September and December 2023 and the £925 for loss of education between January and February 2024. The £500 to recognise the distress caused to her and the £500 for the time and trouble she experienced.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have completed my investigation and found the Council was at fault and this caused injustice to Ms X and Y. The Council has agreed to the above actions to remedy the injustice caused.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman