Summary: Ms X complained about the Council’s lack of communication and delay in issuing an amended Education, Health and Care (EHC) Plan for her son Y after an annual review meeting. The Council was at fault as it delayed four months in issuing an amended EHC Plan for Y’s transition to post-16 education, and failed to communicate with Ms X. The Council agreed to apologise to Ms X and Y and make a symbolic payment to recognise the frustration and distress this caused them both.

The complaint

1. Ms X complained about the Council’s lack of communication and delay in issuing an amended Education, Health and Care (EHC) Plan for her son Y after an annual review meeting. Ms X said this did not allow time for preparation to move to post 16 provision and caused both Y and her frustration and distress. Ms X wanted the Council to improve its communication and acknowledge the distress it caused.

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The Ombudsman’s role and powers

2. 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)
3. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. I read the documents Ms X provided.
7. I considered the documents the Council provided in response to my enquiries.
8. 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

Relevant legislation and statutory guidance

Education, Health and Care Plans

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. Section I sets out the name or type of school the child should attend. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
10. There is a right of appeal to the Tribunal against:
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan; and
• a decision not to amend an EHC Plan following a review or reassessment.

Reviewing a Plan for post-16 phase transfer

11. The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance.
12. An EHC Plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. (SEN Code paragraph 9.179)
13. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC Plan – including specifying the name or type of post-16 provision – must be completed by 31 March in the calendar year of the transfer. (The Special Educational Needs and Disability Regulations 2014, section 18(1)(a))
14. The Code of Guidance states the amended EHC Plan must specify the type of provision and must name the institution a young person should attend. (SEN Code paragraph 9.180). Council’s must have due regard to the statutory guidance. Where a council decides not to follow the statutory guidance, we expect it to make clear and contemporaneous records of its reasoned decision to depart from the guidance.

What happened

15. In September 2022 Y was in year 11 of secondary school. He had an EHC Plan that set out his special educational provision and named the special school he should attend (provider A). Y was due to complete a phase transfer to post-16 education in September 2023.
16. The Council said an annual review meeting of Y’s Plan was held on 29 September 2022.
17. The Council wrote to Ms X on 22 November 2022 and said it had decided to maintain Y’s EHC Plan. It said it would review and amended Y’s Plan before his transfer to post-16 education in September 2023. It told Ms X of her right of appeal against its decision to maintain the EHC Plan.
18. At the beginning of March 2023 the Council issued a draft amended Plan for Ms X’s comments. On the same day it consulted two providers; provider A as Ms X’s parental preference and provider B as the Council’s proposed option.
19. Provider A responded within a week and offered Y a place for September 2023. The Council did not receive a response to its consultation from provider B.
20. The Council named the type of school Y should attend in section I, but did not name a placement, and issued an amended final EHC Plan on 31 March 2023. It wrote to Ms X and told her of her right of appeal if she disagreed with the content of the Plan. It also said it had not finished the consultation process and so, to meet the statutory deadline of 31 March it had issued a Plan naming a type of school. It said it would continue the consultation process and would issue an amended final Plan when it had identified a placement to name.
21. Provider B told the Council it could not meet Y’s needs at the end of April 2023.
22. Ms X wrote to a Councillor at the beginning of June. She said she had been trying for two months to contact the Council about Y’s placement for September 2023. The Councillor asked the Council to consider the matter the same day.
23. The Council said it consulted provider C at the beginning of June. Provider C responded within two working days and said it could not meet Y’s needs.
24. In mid-June the Council’s placement panel decided to name the parental preference for Y (provider A).
25. Ms X raised a complaint with the Council at the beginning of July. She said the Council had not confirmed an educational placement and had not responded to her or provided any communication. She said the uncertainty was detrimental to Y and the delay would not allow any time to prepare Y for a change in placement.
26. Ms X contacted the Council again at the end of July as she had not received a response or update.
27. The Council issued an amended final Plan on 28 July 2023. It named provider A. The Council sent Ms X the final amended EHC Plan and told her of her right of appeal to the SEND tribunal if she disagreed with the content of the Plan.
28. The Council responded to Ms X’s complaint at the beginning of August 2023. It said:
• Decisions about placements were made by its placement panel and apologised for the delay in confirming Y’s placement.
• It had now agreed to a placement for Y at provider A for three days a week.
• It would issue an amended final EHC Plan naming provider A from September 2023.
29. During my investigation I reviewed the communication between Ms X and the Council. Ms X contacted the Council on a number of occasions in April, June and July. There is no evidence the Council provided any update or meaningful response to her contacts.

My findings

30. Y was due to transfer from secondary to post-16 education. The statutory guidance states the Council should have issued an amended final EHC Plan specifying the post-16 provision and naming the institution by 31 March 2023 to allow time for planning and arranging support and provision. The Council issued an EHC Plan on 31 March 2023 however, it did not name the college Y should attend. The Council told Ms X it did not name a placement as it had not finished the consultation process.
31. The Council did not begin the consultation process for Y’s new placement until the 10 March 2023, three weeks before the statutory deadline. It delayed from April to June to consult provider C, and delayed issuing an amended Plan for six weeks after it decided to name provider A. The Council did not issue the Plan naming the post 16 provision and placement until the end of July. That was four months longer than the statutory guidance allows and was fault. Had the Council acted without fault it would have issued an EHC Plan naming the provision in line with the statutory guidance. The delay caused Ms X and Y unnecessary frustration, uncertainty and distress.
32. The Council decided to maintain Y’s Plan in November 2022 and issued an amended final Plan in March 2023. Both of those decisions carried a right of appeal to the SEND Tribunal. However, the Council told Ms X on both occasions that it would continue work on reviewing and updating the Plan to name an appropriate placement in section I. Because of this it was not reasonable to expect Ms X to appeal those decision. The final amended EHC Plan the Council issued in July 2023 also carried a right of appeal to mediation and the SEND Tribunal about the content of the Plan. Ms X has already sought mediation on that matter and so I have not considered it further.
33. There is no evidence of any communication from the Council to Ms X about Y’s Plan or placement between March 2023 and the end of July 2023. In that time Ms X made attempts to contact the Council including through a Councillor and by making a complaint. The lack of communication from the Council was fault and caused Ms X further frustration and distress.

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Agreed action

34. Within one month the Council will:
• Write to Ms X and Y and apologise for the injustice caused to them by the faults identified.
• Make a symbolic payment to Ms X of £500 (£250 each for Ms X and Y) to recognise the avoidable frustration, uncertainty and distress caused to them.
• Remind SEND staff to begin consulting placements for young people transferring from secondary to post 16 placements in good time, to ensure EHC Plans are issued in line with the statutory guidance.
• Remind SEND staff of the importance of responding to contact and of providing regular updates where families are waiting for an amended EHC Plan.
35. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
36. The Council will provide us with evidence it has complied with the above actions.

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Final decision

37. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice and improve service.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman