Summary: Mrs X complained the Council delayed issuing a final Education, Health and Care plan for her son in reasonable time when he transferred from primary to secondary school. I have found the Council at fault. It did not issue a final plan in line with the statutory guidance, and this caused Mrs X an injustice. The Council will apologise, recognise the delay this had on Mrs X’s appeal rights and take action to prevent reoccurrence.

The complaint

1. Mrs X complained the Council delayed issuing a final Education, Health and Care (EHC) plan in a reasonable time for her son, C, when he transferred to secondary school.
2. She says this has delayed her appeal rights which could have influenced C’s starting school.

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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 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)
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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)
6. 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

7. I have considered:
• The information provided by Mrs X and discussed the complaint with her;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
8. Mrs X and the organisation 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

Law and guidance

9. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
10. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
11. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
12. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
13. For young people moving between key phases of education the Council must review and amend their EHC plan by 15 February in the calendar year of the transfer. This is to allow for planning and commissioning support and provision at the new school.
14. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)

15. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.

Key events

16. C has learning difficulties and has an EHC plan to help him in school. In September 2022 he began his final year of primary school.
17. The Council carried out C’s annual review in early September 2022. In preparation for C’s move to secondary school.
18. The Council issued a draft EHC plan in mid-January 2023. Mrs X accepted the draft EHC plan and asked for the Council to consult with School A. The Council also chose to consult with School B. The consultations were sent out in late February 2023.
19. School B responded in late February offering C a place. School A initially responded to query if the place would be for September 2023. Following clarification, it looked to arrange an in-person assessment of C. It told the Council in early April that it had been unable to arrange the assessment at that time. It responded in early May 2023 offering a place to C.
20. The Council held a resource panel in mid-June 2023 as school A was more expensive than school B. The panel considered whether school A would be an efficient use of resources. Following the meeting the Council issued a final EHC plan which named school B.
21. Mrs X was unhappy with the school named and issued an appeal.

Findings

22. The Council has accepted there was a delay in issuing a final EHC plan for C and that it did not do this before 15 February 2023. The Council began its annual review in September 2022. It should have been able to issue a final plan by December 2022. The Council did not issue a draft plan until mid-January 2023. This is significantly outside the timescales.
23. The Council then sought to consult with two schools. Despite having sent the consultation paperwork out after the deadline of 15 February 2023 it took no action to chase a response when this was not forthcoming. On receiving a response in early May the Council took no action to escalate its review and ensure the decision was made promptly. This meant a final plan was not issued until mid-June 2023. This is six months after the time set by regulations for an annual review and four months after the deadline for children transferring between primary and secondary school.
24. The Council’s actions have contributed to the delay in appeal rights and the frustration Mrs X has experienced. However, school A’s actions, in arranging the assessment, have also caused a delay in the process. I cannot say that had the Council chased, the school would have responded sooner to confirm its position.
25. During this time, the Council provided Mrs X with no updates. She was therefore unaware it was awaiting a response from the school due to this visit and unable to take any action she may have wished to. This lack of communication is fault.

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Agreed action

26. Within the next month the Council will:
• Apologise to Mrs X for its delay in issuing the final EHC plan and the impact this has had on appeal rights and the frustration caused by its lack of communication.
• Pay Mrs X £350 to recognise the delay in her appeal rights.
• Remind all staff of the deadline for issuing EHC plans where a child is to move between key phases and of the importance of keeping families told of any delays.
27. The Council should provide us with evidence it has complied with the above actions.

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Final decision

28. I have completed my investigation. I have found fault leading to injustice. The Council will take action to remedy the injustice caused and prevent reoccurrence.

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Investigator's decision on behalf of the Ombudsman