Summary: Ms X complained about how the Council handled her son’s (A’s) Educational Health and Care Plan when he transitioned to secondary school. We found the Council was at fault for not complying with regulations and government guidance when it reviewed A’s Plan. The Council’s failure to follow the correct procedure caused Ms X frustration and confusion but did not cause A to miss out on support. The Council has procedures in place to prevent similar issues happening in the future. The Council has agreed to apologise to Ms X.

The complaint

1. Ms X complained there were delays in the Council arranging the counselling and teaching assistant support specified in her son, A’s, Education Health and Care plan (EHC Plan).
2. She also said it failed to hold an annual review before issuing his EHC Plan for his transition into secondary school.
3. She said that she had contacted the Council about the need for the annual review, but it had failed to respond.
4. Ms X said the Council’s actions have caused uncertainty, distress and anxiety to both her and A, around his secondary school placement and the support that would be in place.
5. She wants the Council to apologise and make changes to ensure the problems she experienced do not happen again.

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The Ombudsman’s role and powers

6. 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)
7. 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)
8. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)

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How I considered this complaint

9. I considered Ms X’s complaint and supporting information.
10. I also considered the Council’s response to Ms X and to our enquiries.
11. Ms 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

Education, Health and Care Plans: the law

12. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
13. The procedure for issuing and reviewing an Education, Health and Care Plan is set out in legislation and Government guidance.
14. The Council must review a child’s EHC Plan within 12 months of the Plan being finalised. Subsequent reviews must be held within 12 months of the previous review.
15. Where a child is within 12 months of a transfer between phases of education, the Council must review the child’s EHC plan before 15 February in the calendar year of the child's transfer. The Council must, where necessary, amend the EHC plan so that it names the school, or type of school, the child will attend following the transfer.
16. Guidance states that a council should usually start the phase transfer from primary to secondary in the autumn term of the year before the child moves setting. The Council has confirmed it would normally start the phase transfer in October.
17. Before issuing, or amending, a Plan, the Council must send a draft plan to the child’s parents and invite them to comment on the content of the plan and request a particular school for their child. The Council must allow parents 15 school days to comment.
18. Once the Council has issued a final Plan, 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 EHC plan.

What happened

19. Ms X’s son, A, has special education needs (SEN). The Council issued his first EHC Plan on 14 January 2020.
20. The Council should have completed the annual review of A’s EHC Plan by 14 January 2021. As this review was within 12 months of A’s transfer to secondary school, the Council was required to amend his Plan and name the school, or type of school, he would attend the following September.

Absence of an allocated caseworker

21. Ms X said she began contacting A’s caseworker in August 2020 about the annual review. Ms X did not receive any response to her emails and calls.
22. The Council since confirmed that A’s caseworker had left the Council. It apologised that no one responded to Ms X. The Council did not follow its usual process for allocating a caseworker. It said this was due to a recruitment freeze in January 2020. The Council apologised to Ms X.
23. The Council explained all SEN staff email signatures and voicemails include additional generic SEN contact details that Ms X could have used when she received no response from the caseworker. Ms X said she left messages on the generic email and voicemail but did not receive a response. The Council apologised and said normally, messages are transferred to relevant teams.
24. Ms X said when A did not a have an allocated caseworker, there were gaps his provision.
25. The Council said that despite A not having a caseworker, he had the support in place agreed in his EHC Plan. It confirmed that A had teaching assistant support and counselling in place following the issue of A’s 2020 EHC Plan. A’s school confirmed that this support was in place before the Plan was issued.
26. The Council said if a caseworker had been in place, they would have started A’s phase transfer process in October 2020. Ms X said there was no opportunity to consider other secondary schools and that A had missed out on transition activities. She said she felt she had no choice but to choose the school that A attended for primary education as it continued up to secondary and at least she knew what that school was like.

Transition review

27. On 4 January 2021, A’s new caseworker called Ms X to discuss secondary schools.
28. The following day, Ms X emailed her school preferences to the caseworker. Ms X also confirmed A’s ADHD diagnosis and sent a copy of his school report.
29. The Council consulted nine schools in January and February 2021.
30. The Council issued A’s draft EHC Plan on 8 February.
31. Ms X complained the schools did not have relevant, up to date information because the Council had not completed the annual review.
32. The Council said it had provided the schools with A’s updated school report and medical information.
33. All but one of the consulted schools responded by 10 February. However, several commented about the timing of the consultation.
34. The Council issued A’s final EHC Plan on 15 February 2021, thereby meeting the statutory deadline. The Plan did not name Ms X’s preferred school.
35. Ms X disagreed with the school named in A’s final plan and appealed to the Tribunal.
36. On 3 March 2021, the Council contacted A’s school to arrange an annual review meeting. The meeting took place on 21 May 2021.
37. Before the Tribunal hearing, the Council agreed to name Ms X’s preferred school. The Council reissued A’s final EHC Plan on 2 August 2021. Ms X was happy with the EHC Plan and A had provision in place for his transition to secondary school September 2021.

Analysis

38. The Council was at fault for failing to notify Ms X that A’s caseworker had left the SEN team, and for failing to allocate a new caseworker.
39. Ms X experienced frustration when she did not receive replies to calls and emails. She said it added to an already stressful and difficult stage in A’s education.
40. The fault did not cause a significant injustice to A in terms of his existing needs as the support agreed in the EHC Plan continued.
41. However, the delayed phase transfer process meant that A potentially missed out on early stages of the transition process that should have commenced in October 2020. This would have allowed an earlier opportunity to consider secondary schools and the options available.
42. The Council apologised for the delays and for not reallocating a caseworker. The Council said it now has procedures in place to avoid such delays and omissions in the future.
43. Although the Council issued A’s EHC Plan before the 15 February deadline, it did not comply with the regulations and government guidance. In particular, the Council:
• failed to hold an annual review meeting before amending A’s Plan; and
• held the annual review meeting after it had issued the final plan.
44. This is fault.
45. It is clear the Council’s failure to follow the correct procedure caused Ms X frustration and confusion.
46. The Council said it did not have an impact on A since it shared up to date medical information and information provided by A’s school when it consulted secondary schools.
47. The Council held an annual review of A’s Plan in May 2021. The delay in holding the annual review of A’s EHC Plan was fault.

Conclusion

48. The delay in the annual review and failure to allocate a caseworker resulted in an injustice for Ms X and A.
49. Ms X suffered considerable stress and worry about the delayed transition process and the absence of a caseworker to support the family through the process exacerbated this.
50. The delays and absence of a caseworker did not cause A an injustice as the Council continued to provide the agreed in the EHC Plan. There are no substantial differences between the original EHC Plan and the amended EHC Plan in terms of the support A should receive.
51. However, the phase transfer for children with SEN is important to ensure the process runs smoothly with minimal disruption and maximum preparation time for the child.
52. The absence of a caseworker for 5 months meant the transition process was rushed, and the Council did not follow the correct procedure in order to meet the deadline. It is not clear how this affected A.
53. There is no significant overall injustice as the Council communicated relevant updates to secondary schools it consulted, and ultimately named Ms X’s preferred school and A did not miss any education or support.

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Agreed Actions

54. Within 4 weeks of my final decision, the Council has agreed to apologise to Ms X for:
• failing to hold an annual review meeting before amending A’s Plan; and
• holding the annual review meeting after it had issued the final plan.

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Final decision

55. I have completed my investigation.
56. The Council was at fault for not complying with regulations and government guidance when it reviewed A’s Plan.
57. The Council’s failure to follow the correct procedure caused Ms X frustration and confusion but did not cause A to miss out on support. The absence of a caseworker delayed the start of the phase transfer process which made it harder for Ms X and A.
58. The Council has procedures in place to prevent similar issues happening in the future.
59. The Council has agreed to apologise to Ms X.

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Investigator's decision on behalf of the Ombudsman