Summary: Mrs B complains the Council delayed amending her son’s, child C, Education, Health and Care plan (EHCP) during his transition from primary to secondary school. We found the delays caused C distress and meant he missed out on a month of education and transition support. The Council agrees actions to remedy the injustice to C.

The complaint

1. Mrs B complains about the Council’s handling of her son’s, child C, Education, Health and Care Plan (EHCP) during his transition from primary to secondary school.
2. She says the Council:
• Delayed reviewing and amending C’s EHCP for the transition process.
• Failed to meet the statutory deadline for this process.
• Delayed issuing the final EHCP, naming C’s secondary school.
3. Mrs B says this caused distress and anxiety because it denied C a transition period. Mrs C also says C missed provision because the delays meant he could not start school at the beginning of term.

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The Ombudsman’s role and powers

4. 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)
5. If we are satisfied with a council’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)
6. 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

7. I considered the information provided with Mrs B’s complaint. I made enquiries with the Council and considered its respond with the relevant law and guidance.
8. Mrs B and the Council had the opportunity to comment on my draft decision. I carefully considered the comments I received.

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What I found

Law and guidance

Education, Health and Care plans (EHCP’s)

9. 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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
10. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
11. If parents or a young person disagrees with the content of an EHCP or the proposed placement, they can appeal the First Tier Tribunal Special Educational Needs and Disabilities (SEND) Tribunal.

Annual review

12. The Annual Review of an EHCP considers whether the provision remains appropriate and whether progress is being made towards the targets in the plan. The Code says the first review must be held within 12 months of the date when the plan was issued, and then within 12 months of any previous review. The Council must notify the child’s parents of its decision within four weeks of the review meeting (and within 12 months of the date of issue of the EHC plan or previous review).
13. In practice the review covers not just the annual review meeting, but the Council’s decision (to maintain, cease or amend the plan) following the meeting. Each of these decisions carries a right of appeal.
14. A common complaint is delay after an annual review which delays a right of appeal. Where a council decides to amend the plan it must notify the parent of this decision within four weeks of the review meeting. There is however no statutory timeframe for how long the Council can take to do the amendments, the Code simply says this should happen ‘without delay’. Once the amended plan is ready it must be sent to the parent with an amendment notice. The Council has to issue the final plan within eight weeks of the amendment notice.

Transition

15. Section 9 of the Code of Practice (2015) says an EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education. This allows for planning for and, where necessary, commissioning of support and provision at the new institution.
16. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools.

What happened

17. C was attending primary school X in 2019. He was due to start secondary school in September 2020.
18. School X held C’s annual review meeting on 3 October 2019. It submitted the review paperwork to the Council on 5 December 2019.
19. School X emailed the Council on 4 February 2020 to follow up the review. The Council uploaded the review paperwork to its database on 6 February and began the amendment process.
20. In March 2020 Mrs B complained to the Council about the delays.
21. On 10 March 2020 the Council shared the notice of amends with Mrs B. It sent an updated version 10 days later.
22. Between 25 March and 24 June 2020 the Council consulted with various secondary schools.
23. The Council issued the final EHCP on 13 July 2020. Mrs B appealed to the first-tier tribunal about the named secondary school. The Council and Mrs B reached an agreement about the named secondary school in September 2020.
24. C started secondary school on 5 October 2020.
25. Mrs B was unhappy with the delays and transition process and complained to the Ombudsman.

My findings

26. The delays in this case started after the annual review in October 2019. The school failed to send the report to the Council within two weeks of the review meeting.
27. The Council failed to identify the delay receiving the report and failed to take action to ensure it issued its notice of amends within four weeks of the meeting. This appears to be fault.
28. The Council says the problems with the review paperwork were because C was educated in a school out of the Council area. It says the school sent the report to the wrong email address. Mrs B says only one email was sent to the wrong address. She says the school was in email contact with the SEN team during 2019. I have also seen evidence Mrs B forwarded the school email to an individual officer in October 2019. On balance I do not accept the Council’s explanation for the delays. It did have the information in October 2019 but failed to take appropriate action. This is fault.
29. We expect councils, as the lead agency in the EHC process, to have appropriate arrangements in place to meet statutory requirements within the timeframes set out in the Code.
30. The Council failed to complete the review and amendments by 15 February 2020, as set out in the section 9 of the Code of Practice (2015). This is fault. In its response the Council says it was not possible to meet this deadline because:
• C does not attend a school in the Council’s area.
• Late receipt of the annual review paperwork from school X.
• The complexity of the requested amendments.
• Requests for further amendments.
31. Irrespective of the above issues the Council should have issued the notice of amends by 28 October 2019. It issued this on 10 March 2020. This is a 19-week delay. This is fault.
32. The delay after the annual review meeting meant the whole process was delayed. The Council should have identified C as a child who would be transitioning in September 2020. It should have prioritised his review and the required amendments knowing C’s complex needs may require a longer consultation period with prospective secondary schools.
33. The delays also delayed Mrs B’s right of appeal. Whilst we would expect the Council to attempt to work with the parents it should not lose sight of the timeframes and deadlines. It should factor the 15-day consultation period into its planning.
34. Mrs B says the delays meant C missed out on transition because the secondary school was not agreed until September 2020. I agree. The transition to secondary is an important phase for any child. C’s additional needs meant the lack of transition caused additional distress and anxiety.
35. C also missed four weeks of education at the start of term in September 2020. The staff at C’s secondary school needed to receive specialist training to meet C’s medical needs. The Council says its preferred school may not have required this level of training. This is irrelevant. C’s school was agreed and named in his EHCP. Without the delays it is reasonable to assume the staff could have received the necessary training ready for C to start school in September.

Agreed action

36. Within a month of my final decision the Council agrees to:
• Pay C £100 for the distress it caused due to the delays.
• Pay C £500 for missed education provision.
• Pay Mrs B £100 for her time and trouble.
37. Within two months of my final decision the Council agrees to:
• Review its procedure for annual reviews of children educated out of its area. It should be able to evidence how it will ensure it meets the timeframes set out in the Code for these children.

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Final decision

38. I find fault with the Council causing injustice. The Council agrees actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman