Summary: Mrs X complained about how the Council handled her child’s transition from education other than at school to a school setting and its failure to provide her child with the personal budgets contained in her Education, Health and Care Plan. Mrs X also complained about how the Council poorly communicated with her. There were some faults by the Council which caused injustice to Mrs X. The Council will take action to remedy the injustice caused.

The complaint

1. Mrs X complained the Council did not properly manage her child’s (Y’s) transition from Education other than at School (EOTAS) to a school setting. In particular that the Council:
1. did not properly consult with School 1
2. did not provide the personal budget contained in Y’s final Education, Health and Care (EHC) Plan when she started school in September 2023
3. proposed to withdraw Y’s personal budgets mid-course
4. communicated poorly with her.
2. Mrs X said the matter caused her distress, frustration, uncertainty and the time and trouble chasing the Council for updates. Mrs X also said she was left with no support from the Council in securing a school placement for Y and with no personal budget support.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. 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)
7. 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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What I have and have not investigated

8. I have investigated matters from November 2022 to 8 January 2024. This covers the period when Y’s EHC Plan annual review and transition meeting was held to when the Council issued its final response to Mrs X’s complaint. Although some of this period is outside our usual 12-month timeframe, I have investigated it because it is a continuous series of events.
9. I have not investigated matters after 8 January 2024, this includes matters relating to Y’s EHC Plan annual review held on 25 January 2024 and point “c” above. This is because these are new and separate issues. We expect Mrs X to use the Council’s complaint procedure before we consider an investigation.

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How I considered this complaint

10. I have discussed the complaint with Mrs X and considered the information she provided. I also considered the information the Council provided in response to my enquiries.
11. I sent Mrs X and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

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What I found

Education, Health and Care Plans

12. A child or young person with special educational needs (SEN) 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.
13. 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. Councils can delegate the holding of the review meeting to a school. The process is only complete when the council issues a decision about the review.
14. 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)
15. 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.
16. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan, including specifying the post-16 provision and naming the institution by 31 March in the calendar year of the transfer.

Education other than at School

17. Education other than at school (EOTAS) is a package of education which is council-funded and should be in section F of the EHC Plan.

Personal budgets

18. A personal budget (PB) is the amount of money the council has identified it needs to pay to secure the provision in a child or young person’s EHC Plan. One way that councils can deliver a PB is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
19. The council’s duty to secure or arrange provision specified in EHC Plans is only discharged through a direct payment when the provision has been acquired for, or on behalf of, the child’s parent or the young person.
20. The council must ensure the direct payment is sufficient to secure the provision sent out in the EHC Plan.
21. Details of the PB should be set out in Section J of the EHC Plan. It should provide a detailed explanation of how the PB will be used to deliver agreed provision, the needs, and outcomes it will meet and will explain how the money will be used, spent, and managed. It does not need to include all the costs involved in supporting the child.

Key events

22. Y has some health conditions and mobility issues.
23. Y had an Education, Health, and Care (EHC) Plan with an education other than at school (EOTAS) package. The Council asked School B to oversee her EOTAS package on the Council’s behalf.
24. In November 2022, School B arranged and chaired Y’s annual review meeting. The annual review included a transition plan for Y to move from EOTAS to a school setting for sixth form. Mrs X stated Y’s preferred school to be an independent sixth form school.
25. Mrs X said due to the uncertainty of how Y would cope at a school setting after two years of EOTAS, the Council suggested the following three options should be included in Y’s EHC Plan to better support her transition:
1. Until 31 August 2023; Y’s current EOTAS package should be in place to enable her to finish her GCSEs
2. From 1 September 2023; provision required for Y to return to a mainstream sixth form setting, including a Personal Budget (PB)
3. EOTAS provision required from 1 September 2023 for Y should she be unable to attend a mainstream sixth form placement from 1 September 2023.
26. The Council told us it did not receive the annual review paperwork from School B until 31 March 2023. The same day, the Council issued its decision letter to Mrs X which notified her of its decision to amend Y’s EHC Plan.
27. Between March and April, consultations were made to some independent schools including Y’s first preference. All the schools responded that they could not meet Y’s needs.
28. In April, the Council issued Y’s final EHC Plan. The following sections stated:

• Section I (School Setting): “From 1 September 2023, an independent sixth form provision to be identified”.
• Section J (Personal Budget): £86,262 (until August 2023) and £42,811 (from 1 September 2023 for Education) or £75,494 (from 1 September 2023 if EOTAS continued).

29. In May, the Council consulted with a mainstream school (School 1) which Y also liked. And in June, School 1 confirmed it could meet Y’s social and emotional needs, but it was unable to meet her mobility needs due to the lack of a lift in one of its buildings.
30. The Council asked Mrs X to liaise with School 1 about its consultation response. Mrs X had a meeting with School 1 in July about how to mitigate the physical challenges Y may experience at the setting. After the meeting, Mrs X informed the Council her meeting went well with a possible resolution. Mrs X also told the Council that Y wished and requested for all the three 1:1 staff that were already working with her were retained to continue supporting her when she resumed school in September 2023. Mrs X asked if the Council could arrange a meeting with her to discuss staffing for Y from September.
31. Mrs X said she chased the Council between July and September 2023 for its response and updates on matters such as transition support and staffing for Y at School 1. Mrs X said she received no response from the Council.
32. In 2023, School 1 confirmed Y’s admission in August and Y started there in September.
33. Mrs X said the Council’s lack of transition support for Y and its failure to respond to her emails caused her uncertainty because she was unsure if Y would cope. Mrs X said Y subsequently confirmed she liked School 1 after the third day she resumed.
34. In mid-September, Mrs X informed the Council that Y had started School 1 and she asked again for a meeting to discuss the provisions as contained in the EHC Plan including her personal budget (PB).
35. The Council held a meeting with Mrs X at the end of September to discuss the provision in Y’s EHC Plan now she had moved from EOTAS to a sixth form setting. Mrs X also pointed out Y’s PB as contained in her Plan had not been paid.
36. The Council told Mrs X that an early AR of Y’s Plan was required to change the named setting (Section I) in her EHC Plan to reflect her transition to School 1. Mrs X disagreed with the Council that an early AR was required for such a minor change to be made. She said this was because Y’s April 2023 final EHC Plan already had a school setting named and it contained provisions Y needed at a school setting. The Council maintained it was a significant change and explained EHC Plans are required to be reviewed annually. It said Y’s last review was conducted in November 2022, so the Council maintained another review was necessary.
37. In November, the Council confirmed Y’s case had been considered by a panel and it was decided that direct payments were in line with her final EHC Plan. The Council set up a direct payment to support Y at School 1 and said it would backdate this to September when Y started attending a school setting. Mrs X and the Council both confirmed that Mrs X continued to use the remaining funds in Y’s EOTAS package to support Y since she started School 1.
38. On 6 November 2023, the Council originally sent out invitations to all parties for Y’s AR scheduled for 4 January 2024. This included an invitation to Mrs X and School 1. In December 2023, the Council rescheduled Y’s AR to end of January 2024 due to availability of all parties involved and sent out the paperwork.
39. In December 2023, Mrs X made a formal complaint to the Council. She complained about how the Council had handled Y’s transition from EOTAS to a school setting, how it handled Y’s PB for School 1, its rationale to conduct an early AR for Y’s Plan and how it sent out the AR invitations.
40. On 8 January 2024, the Council issued its response to Mrs X’s complaint. The Council:

• said transition work was covered during Y’s November 2022 AR with the agreed provisions to meet her needs set out in her final EHC Plan dated April 2023.
• maintained the statutory timescale for ARs is every 12 months, therefore Y’s EHC Plan was due for a review
• said due to Y’s transition from EOTAS to School 1, it needed to ensure she had the appropriate provision in place in her Plan to meet her needs, so an AR was required
• said it correctly sent out the invitations and paperwork for Y’s 2024 AR in line with the 2 weeks’ notice statutory timeframe
• apologised for its poor communication with Mrs X.

41. Mrs X remained dissatisfied with the Council’s response, and she made a complaint to the Ombudsman.

Analysis

42. The process of consulting with post-16 placements should have happened in advance of the deadline to issue Y’s EHC Plan, which was 31 March 2023. The consultations did not happen early enough, and this was not in line with the SEND Code of Practice. This meant Y’s final EHC Plan was slightly delayed. This was fault, but the injustice was not significant.
43. I find no fault by the Council when it asked Mrs X to liaise with School 1 after its consultation response. This is because we find it reasonable for parents to meet with prospective placements to resolve any outstanding issues or concerns.
44. However, I find fault by the Council for its failure to liaise with School 1 about the agreed PB contained in Y’s final EHC Plan prior to September 2023. The Council should have ensured there was an agreed and finalised direct payment in place and available for Y in September when she started at School 1. The Council did not finalise the direct payment until November which was fault. But there was no loss of special educational provision to Y. This was because Mrs X continued to use funding which was left in the PB from the previous school year/EOTAS package to arrange Y’s provisions contained in her EHC Plan. However, the Council’s delay in Y’s PB arrangements caused Mrs X avoidable distress and uncertainty.
45. As regards the Council’s communication, it had accepted its communication with Mrs X was poor and this was fault. The Council has apologised to Mrs X which I consider is a partial remedy. This will be addressed in the ‘agreed action’ section below.
46. Mrs X also complained about the Council’s decision to conduct an AR of Y’s EHC Plan after her resumption at School 1 and that it poorly scheduled the AR. The SEND Code of practice states councils must arrange for an EHC Plan to be reviewed within 12 months of a previous one. In this case, Y’s previous AR was conducted in November 2022 and the AR process was completed when the Council issued its decision letter to amend the Plan in March 2023. The school setting named in Y’s final Plan issued in April 2023 was “From 1 September 2023, an independent sixth form provision to be identified”. Therefore, the Council was not at fault when it informed Mrs X in November 2023 that it needed to carry out an AR of Y’s Plan and particularly to change the named setting to School 1. This was in line with the statutory provisions as it fell within 12 months of Y’s previous AR, and it was not fault.
47. Also, I find the Council sent out the AR invitation within the two weeks statutory timeframe before the scheduled AR in January 2024. This was not fault.
48. Mrs X complained about the Council’s tone of emails but from the evidence seen I find its correspondence to be professional and therefore, this was not fault.

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Agreed action

49. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Mrs X and make her a symbolic payment of £250 to acknowledge the injustice caused by the Council’s poor communication with her and the avoidable distress and uncertainty caused by the Council’s delay in arranging Y’s PB when she started School 1. The apology should be in accordance with our guidance, Making an effective apology
• by training or otherwise remind relevant staff of the importance of arranging and securing any agreed personal budgets in a timely manner where provisions agreed in an Education, Health and Care Plans are to be delivered on the school or college premises.

50. The Council should provide us with evidence it has complied with the above actions.

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Final decision

51. I find evidence of fault by the Council leading to injustice. The Council has agreed to take action to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman