Summary: Mr X complained about the Council’s failure to provide his son with suitable education, a school place or provision as set out in his Education, Health and Care Plan, since moving to the Council’s area. We found fault with the Council as it has not been able to secure a school place, arrange consistent tuition or deliver the contents of Mr X’s son’s Plan. The Council has agreed to our recommendations to remedy this injustice.

The complaint

1. Mr X complains the Council has failed to secure a school place for his son for over a year after moving into the area, and it has not delivered provision in accordance with his Education, Health and Care Plan. He also says the Council has not provided suitable full-time alternative tuition for his son in the interim. This has caused significant distress and frustration. He says his son is missing out on education, socialising opportunities, and his mental health has been negatively affected.

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What I have and have not investigated

2. I have investigated the period from January 2022 (when education and provision should have been put in place) to January 2023 (when the Council made its final response to Mr X’s complaint).
3. We will usually only investigate events up to the point the complainant received a final response to their complaint. We expect anything that happens after that to be addressed to the Council first so it can respond. Whilst there can be a continuation of linked events, we are entitled to determine an appropriate cut off point for our investigations. I am not taking a view on further matters after January 2023 as these are ongoing, current, with new facts and circumstances that should be considered by the Council first.
4. In Paragraphs 27-30, I have referenced events before the above period for relevant background and context.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

8. I discussed the complaint with Mr X and considered his views.
9. I made enquiries of the Council and considered its written responses and information it provided.
10. Mr X 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

Law and administrative background

Education, Health and Care Plans (EHCP)

11. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
12. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.

Transfer of EHCPs between councils

13. Where a child or young person moves to another council, the ‘old’ council must transfer the EHCP to the ‘new’ council. The new council must tell the child’s parent or the young person, within six weeks of the date of transfer, when it proposes to make an EHC needs assessment. (Special Educational Needs and Disability Regulations 2014)
14. The new authority must tell the child’s parent or the young person, within six weeks of the date of transfer, when they will review the plan and whether they propose to make an EHC needs assessment.
15. The new council must review the plan before one of the following deadlines, whichever is later:
• Within 12 months of the plan being made or being previously reviewed by the old council, or
• Within 3 months of the plan being transferred. (SEN Code paragraph 9.161)
16. The requirement for young person or child to attend the educational placement specified in the EHCP continues after the transfer. However, where attendance to the named placement would be impractical then the new council must place the child or young person temporarily at an appropriate placement other than that specified. This is until the EHCP is formally amended.

Annual reviews

17. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
18. Where a council proposes to amend an EHCP, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
19. The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
20. Following comments from the child’s parents, if the council decides to continue to make amendments, it must issue the amended EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196). It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.
21. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHCP. The right of appeal is only engaged when the final amended plan is issued.

Alternative provision

22. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
23. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
24. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))

Background

25. I have summarised below an overview of the key relevant events. This is not intended to be a detailed account of each communication between the parties or an exhaustive chronology of everything that happened.
26. Mr X, his wife, and three sons (including “Y”) previously lived in Council B’s area. The subject of this complaint is Thurrock Council, which I refer to as “the Council”.
27. Y has Autistic Spectrum Disorder. He had an Education, Health and Care Plan (“EHCP”) previously with Council B, dated 2020, which named a school in Section I (name and type of school where provision is to be delivered). In Section F (Special Educational Provision), it outlined mainly classroom based support with advice from a Speech and Language Therapist to inform weekly sessions.
28. In October 2021, Council B started an annual review of Y’s EHCP. I have not seen evidence this was completed. Paperwork noted Y was not attending his named school placement as the transition had broken down earlier that year.
29. At the start of December 2021, Mr X and his family moved to the Council’s area.

What happened

30. In mid-December 2021, the Council accepted responsibility for Y’s EHCP. An internal decision making Panel discussed tuition to be put in place for him until an appropriate school place was secured. The Council said it made a referral for tuition in January 2022.
31. Between January 2022 and January 2023, the Council sent consultations to around 30 special schools. All schools responded they could not offer a place to Y saying either they could not meet Y’s needs or were full. The Council also considered an alternative provision placement; after a visit, Mr X declined this.
32. In February 2022, Tuition Provider 1 arranged sessions for tutors for Mr X’s three sons (including Y) at home. The tutors reported difficulties with some incidents of behavioural issues against them with the children. Mr X requested male tutors for Y and sessions were stopped. Tuition Provider B discussed the option of taking Y out to an external venue for his sessions.
33. In late March 2022, Tuition Provider 1 discussed it was co-ordinating tuition so Y’s carer would be present at sessions with him to provide support with his behaviour outside of the home. There were difficulties with arranging the timings and a location for this.
34. In April 2022, Tuition Provider 1 and the Council had discussions about the availability of tutors for Y.
35. In May 2022, the Council clarified a misunderstanding it had about Mr X’s preference for tutors for all three boys at the same time. He said this was not the case. It informed him Tuition Provider 1 had found a suitable tutor for Y with the aim to start in June. It said the tutors who started work with Y’s brothers had raised safety concerns of the suitability of the home environment in delivering tuition. The Council had been looking for suitable external locations.
36. Mr X responded he was dissatisfied with the inconsistency of Tuition Provider 1. He had not been informed of when sessions were not going ahead and asked for a different provider. The Council acknowledged Mr X’s request. It said it had contacted Tuition Provider 2. The Council said it was limited with the tuition companies it could use and said he was able to find tutors himself if he wished.
37. At the end of June 2022, the Council held an annual review of Y’s EHCP. A draft amended EHCP was made and used by the Council for further school consultations.
38. Between July and October 2022, a suitable venue could not be found for Tuition Provider 2 to deliver tuition for Y.
39. In November 2022, Mr X made a formal complaint to the Council that it had failed to:
• secure a secondary school place or alternative provision for his son for over a year since moving to the area; and
• deliver the provision set out in his EHCP.
40. Shortly after his complaint, the Council found a suitable venue and contacted Tuition Provider 2. Arrangements were made for two and a half hour sessions, for two days a week, to align with Y’s carer’s availability.
41. The Council responded to Mr X’s complaint at Stage One. It outlined the action it had taken with school placement consultations, but no school had been able to offer Y a place. It said efforts had been made to provide suitable tuition for Y which was ongoing. However, his complex needs, difficulties in securing an appropriate venue for it, and Mr X’s request to change tuition provider had impacted this. It said finding an appropriate school place for Y remained a priority and it would continue to actively monitor this.
42. In December 2022, Y did not attend the first session with Tuition Provider 2. Tuition Provider 2 said this was due to a miscommunication with Mr X. A further session was cancelled due to poor weather. Y’s carer requested tuition was cancelled until the new year.
43. Mr X escalated his complaint. The Council’s Stage Two response repeated its previous position that its attempts to get a school place had not been successful. It would continue to try and do what it could to identify a suitable placement, but the arranged tuition would remain in place.
44. Since January 2023, it appears further tuition sessions with Y have not continued, with difficulties in finding other suitable tutors and co-ordinating sessions and a venue. The Council contacted Tuition Provider 3 for tutor availability.
45. In February 2023, Mr X complained to us.
46. In response to my enquiries, the Council confirmed it had not been able to deliver the Special Educational Provision outlined in Y’s EHCP since January 2022. The Council has suggested suitable placements have been identified (an outdoor activity provider) and a venue for sessions with a further tuition provider since March 2023.

Analysis

EHCP transfer and review

47. Within six weeks of transfer, and in line with statutory guidance, the Council should have written to Mr X to tell him when it intended to review Y’s EHCP and whether it intended to conduct an EHC needs assessment. I have not seen evidence the Council did this. This is fault.
48. Upon accepting Y’s EHCP in December 2021, the Council had to review the plan either by 12 months of the old plan being reviewed or within 3 months of the transfer, whichever is the later. In this case, it appears Council B did not complete its annual review in October 2021 before Mr X’s family moved. Therefore, I would have expected the Council to have done this within the 3 month timeframe, by March 2022. The Council held a review in June 2022. This was late and is fault.
49. After this review, amendments were made to the EHCP, but I have not seen a final plan issued from this, which would give Mr X a right of appeal. This is not in line with statutory guidance and time frames, and it has caused drift in the process. This is fault. I cannot say if this had happened that the outcome would have been different. However, this has caused uncertainty and frustration for Mr X with Y’s EHCP being kept up to date and has also delayed his appeal rights.

Educational provision and EHCP provision

50. There have been noted efforts by the Council to secure a suitable school placement for Y throughout the period investigated with numerous school consultations. I have also seen alongside this; the Council has repeatedly tried to arrange some educational provision for Y to meet its section 19 duty and meet Mr X’s preference for a male tutor. There were further difficulties with the Council considering Y’s needs and behaviour, trying to align sessions for his carer to be present, and the availability of a suitable external venue. I recognise the tuition providers have a duty of care towards their staff and these additional logistical considerations were outside of the Council’s control.
51. However, despite the above, Y has not received consistent or suitable education since January 2022. This is fault. He was not attending the school named in his EHCP, his EHCP has not been formally amended, and the Council has not delivered the provisions set out in his EHCP. This has caused injustice to Y as he has missed out on a considerable period of education and provision he was entitled to, and which the Council has a legal duty to provide.
52. I note it appears some progress may have been made since Mr X complained to us. However, this is outside of my consideration for this investigation, as explained in Paragraphs 2-3.

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Agreed action

53. To remedy the injustice outlined above, the Council has agreed to carry out the following actions:
54. Within one month of the final decision:
• Apologise to Mr X for the lack of suitable education provided to Y and for not securing the provision as outlined in his EHCP;
• Pay Mr X £2,700 to recognise the loss of education and special educational provision for Y between January 2022 and January 2023. This can be used for Y’s educational benefit; and
• Pay Mr X £250 to acknowledge the uncertainty, frustration and distress caused, and also in recognition of the injustice at his delayed appeal rights after the annual review in June 2022.
55. Within three months of the final decision:
• Write to relevant staff and remind them of the requirement to inform a parent within six weeks of the transfer of an EHCP when the Council intends to complete a review of the plan and whether it intends to conduct a review of the child’s needs; and
• Write to relevant staff and remind them of the requirement to issue a final EHCP within eight weeks of a draft being issued.
56. In three months after the final decision:
• Provide an update on the progress made and actions taken with finding a suitable placement and/or education for Y.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. I found fault with the Council which caused injustice to Mr X and Y. The Council has agreed with my recommendations to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman