Summary: Mr X complained that the Council failed to implement provision from his son, Y’s, Education, Health and Care Plan and did not follow its own corporate complaints procedure. We found the Council was at fault for not providing Y with suitable transition from primary school to his secondary school. We also found the Council was at fault in its complaint handling. The Council agreed to apologise, make a payment to Mr X and Y and review its process to improve its practice.

The complaint

1. Mr X complains that since the Council issued an Education, Health and Care (EHC) Plan for his son, Y, in March 2023 it failed to:
• deliver provision set out in section F of his EHC Plan;
• implement its own recommendations, which it made in late August 2023; and
• follow its own complaints procedure.
2. Mr X said the Council failed to prepare Y for transition between primary and secondary school, which caused him distress and meant he could not attend the school the Council named in his EHC Plan.
3. Mr X would like the Council to apologise for its failure to provide Y’s transition support, for how it handled his request to escalate Mr X’s complaint and to complete the actions it said it would in August 2023. Additionally, Mr X would like the Council to develop a plan of action to make sure it does not make the same mistakes in the future.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. 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.
7. 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)

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How I considered this complaint

8. I corresponded with Mr X about his complaint. I considered all the information provided by him and the Council.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

What should have happened

10. The Council has a duty to secure the specified special educational provision (Section F) in an EHC Plan for the child or young person (s.42 of The Children and Families Act 2014). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
11. Councils must secure Section F provision when the placement is EOTAS (s.61 of The Act).
12. Special Educational Needs Code of Practice 2015 (The Code) says the provision should be in place from the date the final EHC Plan is issued. Where the provision is proposed by the council in a draft EHC Plan, the Council should be ready to secure that provision when the EHC Plan is finalised.
13. In R (on the application of BA) v Nottinghamshire County Council [2021] EWHC 1348, a judicial review about the Council’s s.42 duty, the Court rejected the Council’s argument it only had to put provision in place within a reasonable time rather than immediately.

What happened

14. The Council issued Y’s final EHC Plan in late March 2023. At the time Y was in year six and was due to move into a secondary school in September 2023.
15. In late July 2023 Mr X complained to the Council. He said that the Council failed to provide the support to transition Y from a primary school to a secondary school as per his EHC Plan.
16. At the end of August 2023, the Council partially upheld Mr X’s complaint. The Council apologised for the delay in delivering the provision from section F of Y’s Plan but said that Mr X turned down the meeting it offered to discuss Y’s transport to school. Additionally, the Council said that once the new school term had begun Y’s key worker would work with his school to:
• come up with a transition Plan for Y; and
• make sure the information about classrooms, timetable and school procedures was available to him before he comes to school.
17. Mr X was unhappy about the Council’s response and on the same day he asked for the Council to consider his complaint further. He asked the Council to explain why it only partially upheld his complaint and said the Council failed to implement the provision, rather than it was delayed.
18. Between August and mid-September Mr X chased the Council for an acknowledgment of his request to escalate his complaint three times.
19. In early October Mr X complained to us and said the Council still:
• had not made the provision from Y’s EHC Plan;
• had not completed the actions it set out in August 2023, detailed in paragraph 16 above;
• had not apologised properly and only apologised that Mr X had to raise a complaint; and
• only partially upheld his complaint and he did not know why.
20. A few days later the Council issued its final response to Mr X’s complaint and said:
• his complaint was partially upheld because the Council made attempts to deliver a transition to secondary school for Y;
• Y’s secondary school contacted his primary school to set transition visits for him, but it needed Mr Y’s consent to finalise those; and
• the secondary school attempted to organise a meeting with Mr Y in early September 2023 but was unsuccessful in doing so.
21. Mr X was unhappy about the Council’s reply, and he asked us to investigate the complaint.

Analysis

22. The Council accepted that it did not deliver the transition process for Y when it should have. This is fault. The Council issued Y’s final EHC Plan in March 2023 and it had sufficient time to ensure that any transition would be planned and agreed in time for Y take advantage of this before the summer term.
23. When Mr X complained to the Council about this, it partially upheld his complaint because it said that it tried to organise the transition programme but did not get Mr X’s consent form. Mr X told us he did not know what consent form the Council referred to, as he has no record of the Council ever asking him to complete such a form. In any case, the Council knew what support Y was going to require in March when it issued his final EHC Plan. This means it had four months to ensure all the necessary steps so that Y would successfully move between the stages of his education. We do not accept the Council’s explanation that the lack of Mr X’s consent was the cause for the delay as satisfactory and we have seen no evidence to support it. We consider the Council failed to plan these far enough in advance which put a lot of pressure on Mr X and Y, and this resulted in Y not being able to take advantage of the transition programme.
24. The Council told Mr X that the secondary school attempted to schedule a meeting with him in early September 2023 to discuss Y’s needs. Again, we consider this to be too late as term had started. The Council is responsible for ensuring that Y’s transition planning happened in good time. Instead, the Council waited for the secondary school to take action when the new term had already begun.
25. The above faults caused Mr X and Y avoidable distress and uncertainty.

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Agreed action

26. Within one month of the date of the final decision statement, the Council will:
• apologise to Mr X and Y for its failure to provide Y with the support he needed in transitioning to his secondary school and the distress and frustration this has caused them. The Council should refer to our guidance on making an effective apology;
• pay Mr X £300 to remedy the distress, frustration, and unnecessary uncertainty he experienced; and
• remind its staff, through appropriate training, of the Council's non-delegable duty to secure the Special Educational Needs provision set out in Section F of a child's Education, Health and Care Plan (EHC Plan).
27. The Council should provide us with evidence it has complied with the above actions.

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Final decision

28. There was fault which caused Mr X and Y an injustice. The Council agreed to our recommendations and my investigation is now complete.

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Investigator's decision on behalf of the Ombudsman