Summary: Dorset Council failed to make proper arrangements for Ms B’s son’s transfer to secondary school. This meant his school placement was not finally agreed until October 2021 and he missed one month of education in September and the special educational needs support detailed in his Education, Health and Care Plan. He also missed out on the opportunity to have a planned transition. The Council will take the action recommended to remedy the injustice caused.

The complaint

1. The complainant, whom I shall refer to as Ms B, says the Council failed to make proper arrangements for her son, M, to transfer to secondary school in September 2021. M has an Education, Health and Care Plan and the Council failed to start the transfer process until June 2021 and this meant that M missed the beginning of term and did not start attending secondary school until October 2021.
2. The injustice Ms B claims is that M missed the opportunity for any kind of planned transfer as he was given almost no notice of the school place being awarded before he started in year 8 and he missed one month of schooling in September 2021.

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The Ombudsman’s role and powers

3. 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)
4. 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)

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How I considered this complaint

5. I considered the information Ms B provided in her written complaint and discussed the complaint with her. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
6. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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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What I found

What should have happened

8. 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 Council is responsible for making sure that arrangements specified in the EHC plan are put in place.

9. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against some council decisions regarding special educational needs. This includes where a parent is unhappy with a school named in an EHC Plan or where it fails to name a school in a Plan. We refer to it as the SEND Tribunal in this decision statement.

10. The Children and Families Act 2014 is the law that includes legal requirements in relation to children and young people with special educational needs and disabilities. The SEN and Disability Regulations 2014 (the Regulations) provide more detail on what councils are required to do when assessing and planning the education, health and care needs of children with special educational needs under the Act. The SEN Code of Practice 2014 (the Code) is statutory guidance that provides councils with further guidance on how to implement the legal requirements.

11. The Regulations confirm that councils are required to regularly review a young person’s EHC Plan with the first review being held within 12 months of the Plan being issued and thereafter within 12 months of the previous review. The Code says that councils should provide schools with a list of children whose EHC plans will require a review two weeks before the start of each school term and that this should identify which reviews relate to transition to a new stage of education.
12. The Regulations also confirm that Plans must be reviewed and amended a sufficient amount of time before transfers to the next stages of education (including from primary or middle school to secondary school) so that there is time for planning and putting in place provision and support at the new school. The Regulations and Code confirm that the deadline date for the completion of the review and any amendments is 15 February in the year of transfer.
13. The child’s school is required to prepare and send a report to all those who attended a review within two weeks of the review meeting and the Council must decide within four weeks of the meeting whether it plans to cease, keep or amend the plan and notify the parent and school of that. Where a child is transferring to a new stage of education the EHC Plan needs to be amended to include the educational setting the child will attend from the September when they will transfer. The Council must notify the parent of the proposed amendments within four weeks of the review meeting and must finalise the amended Plan within eight weeks of sending the parent the proposed amendments. This allows time for the council to contact a parent’s preferred school and/or consult with other schools in order that the new school may be named in the final amended Plan. In order to meet the 15 February deadline councils must ensure the review process starts sufficiently early in the Autumn term of the year before transfer.

Background

14. M is 12 years of age and currently in Year 8 at school. He has special educational needs including a diagnosis of an autistic spectrum disorder. He has had an EHC Plan from at least 2015. He attended an independent special needs school (School A) from September 2018 to July 2021. School A provides education to children aged 5 to 13 which equates to years Reception to 7. The point of transfer was therefore at year 8 at the latest.
15. M’s current EHC Plan was issued by a different council in 2015. The Council confirms the family moved to its area in 2015. The Council accepts that M’s EHC Plan was not reviewed until 2021. The 2015 EHC Plan was not amended to name School A which M attended between 2018 and July 2021.

What happened

16. The Council confirms the first annual review meeting to consider X’s EHC plan dated 2015 was completed in December 2020. This was a phase transfer review as M was due to transfer to secondary school in September 2021. A named secondary school (School C) was suggested at the review which Ms B was reported to be keen to pursue. School A sent the review paperwork to the Council in January 2021. The Council did not then issue a letter confirming whether it would amend, maintain or cease the Plan as required.
17. When she had heard nothing Ms B contacted the Council in February 2021 and asked about the arrangements for getting M a place at a new school from September. The Council did not respond to Ms B.
18. In May Ms B complained to the Council. The Council responded in late June stating it had consulted with School C and other schools in case School C was unable to offer a place. The Council said that School C had asked for more information. The Council apologised for the service provided and that Ms B had to complin to get in resolved. The Council also said that it was reviewing children with an EHC Plan who were transferring to a new phase of education in September 2021 and it expected reviews to be arranged in a timely manner.
19. The Council sent out a consultation letter to School C in June 2021. The school completed an assessment and offered M a place in late July 2021. This offer letter was sent to the Council’s SEN officer. The letter said that places were secured on receipt of agreement to fund the placement and the signed contract.
20. The Council says it agreed to name School C for M on his EHC Plan in early September 2021. It says this did not happen more promptly after the School’s response in July due to staffing changes. M’s placement began in early October 2021.
21. To explain the delays in its handling of M’s education and SEN provision the Council has said that it experienced a high turnover of staff in 2020 and much of 2021 and this meant that Ms B did not have a consistent point of contact at the Council during the period in question. Ms B has stated that she struggled to speak to staff at the Council about finding a school placement and found it particularly frustrating that staff changed so frequently.
22. The Council says it now has permanent staff in post and that an SEN team manager has been Ms B’s consistent point of contact for M since September 2021.

Was the Council at fault?

23. The Council failed to properly complete the review process as it should have done. This amounts to fault. Specifically it failed to:
• ensure the review process started sufficiently early in the Autumn term to meet the statutory deadline to issue a final amended Plan by 15 February 2021: there is no suggestion the Council reminded the school of the need to arrange a review sufficiently early to arrange the transfer review in the Autumn term;
• notify Ms B in writing of its intention to amend, maintain or cease M’s EHC Plan in January 2021 within four weeks of the review meeting and on receipt of the notes from the school;
• issue a final amended plan naming a school from September 2021 by the statutory deadline of 15 February 2021. This in turn denied Ms B a right to appeal against the failure to name a school or that it had named a school she did not want for September; and
• start the consultation process with School C or any other schools in January when it received the review record from the school. It missed a further opportunity to do this in February when Ms B contacted the Council to chase this up. It then waited a further four months until June to start the consultation process and this was far too late and significantly outside the statutory deadlines. It seemingly only did this then as a result of Ms B’s complaint.
24. The Council then appears to have waited two months to agree the placement after it was offered in July, not doing so until early September and this meant M was unable to start at the school until early October. These further delays appear to be attributable to administrative failings in the process over the summer holiday period. This amounts to fault.
25. The Council’s poor communication with Ms B including the failure to take any action following her contact in February 2021 amounts to fault.
26. It appears M’s current EHC Plan still names a school that M has not attended since 2018. This should have been amended to reflect the arrangements that were in place from 2018 because the Council is required to make the provision detailed in the Plan.
27. No updated amended EHC Plan naming M’s new school appears to have been provided yet.
28. Ms B has not specifically complained about the Council’s failure to arrange reviews in previous years and whilst I am not therefore making any finding of fault in relation to this I am concerned that these did not take place.

Did the identified fault cause injustice?

29. The fault in relation to the actions taken before and following the review in December 2020 caused M injustice in that he avoidably missed the first month of school in September 2021. The delay in identifying his new school also caused him avoidable distress, uncertainty and anxiety. In addition had the placement been identified when it should have been M would have had an opportunity to visit the school and this would have helped with his transition. The absence of this opportunity caused him injustice and this was particularly important for him as he is diagnosed with an autistic spectrum disorder and this means he needs more time and opportunity than many children to adapt to changes and new arrangements.
30. The poor handling of the review and transfer process also caused Ms B injustice in the form of avoidable anxiety and uncertainty. In order to resolve the problem she had to chase the Council up and submit a complaint before it took action to identify a school for M. This was exacerbated by the Council’s poor communication with her.
31. The failure to issue a final amended plan naming a new school by February resulted in a lost opportunity to appeal. I am not able to conclude any definite injustice beyond lost opportunity in relation to this as I cannot know when any appeal may have been heard by the Tribunal or what the outcome of any Tribunal may have been.

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Agreed action

32. Within one month of the date of the final decision on this complaint the Council will:
• apologise in writing to Ms B and M for the identified faults;
• make a payment of £600 to recognise the injustice to M in the form of one month of lost schooling in September 2021. I have calculated this at a rate of £600 per month to recognise the lost education and specialist support. This amount is at the top of our usual scale for such payments but reflects the loss of all support including SEN support and of education at crucial transfer point in M’s education;
• make further payments of £200 to Ms B and £200 to M to recognise the avoidable distress and anxiety the uncertainty over the school placement caused them. This amount takes account of the particular difficulty this caused M due to his autism diagnosis and to Ms B in managing this and to recognise the additional difficulty the Council’s poor communication with her contributed to this;
• make a further payment of £200 to Ms B to recognise the avoidable time and trouble she was caused by having to pursue and then complain to the Council and this office ion order to have the matter resolved; and
• issue an amended plan naming M’s current school and provide us with details of when the next review will take place.
33. Within three months of the date of the final decision on this complaint the Council will provide us with details of how in future it will ensure that it tracks annual reviews for all children with an EHC Plan. And especially how it will ensure it makes arrangements for timely reviews in transfer years and how it will ensure that the Council takes appropriate action to deal with these when they are sent to the Council and to then complete the review process.

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Final decision

34. I have completed my investigation. The Council was at fault in its handling of M’s transfer to secondary school and its delay in completing this process caused M and Ms B injustice.

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Investigator's decision on behalf of the Ombudsman