Summary: Ms X complained the Council delayed completing her child’s phased transfer annual review process. As a result, Ms X’s appeal rights were delayed and she could not challenge her child’s secondary school placement until several months after she should have been able to. We found the Council at fault for delaying consulting with schools and producing a final Education, Health and Care Plan for the child’s phased transfer to secondary school. We also found the Council at fault for not issuing an amended Education, Health and Care Plan after an annual review in 2023. To remedy the injustice caused the Council agreed to apologise to Ms X, make a payment to her to recognise the avoidable distress and uncertainty and carry out a service improvement.

The complaint

1. Ms X complains the Council delayed completing her child’s phased transfer annual review process.

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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 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.
4. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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)

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How I considered this complaint

6. As part of this investigation I considered the information provided by Ms X and the Council. I discussed the complaint over the telephone with Ms X. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Ms X and the Council for comments.
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 found

Law and guidance

8. 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.
9. The EHC Plan is set out in sections which include:
• Section B: Special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of educational placement.
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. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
13. 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.
14. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.
15. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The new council must make sure the provision in the EHC Plan begins on the day of the move or within 15 working days of becoming aware of the move if this is later. The new council must review the EHC Plan either within 12 months of it last being reviewed or three months of the date of the transfer, whichever is the later date. (Section 15 Special Educational Needs and Disability Regulations 2014)
16. The council must review and amend an EHC Plan in enough time before to a child or young person moved between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases. The key transfers include primary school to secondary school.

What happened

17. Ms X’s child, Y, has special educational needs. Ms X moved into the Council’s area in late 2022 from a neighbouring council area. Y continued to attend the same school.
18. In May 2023, the Council held an annual review of Y’s EHC Plan. The outcome of the annual review was the Council would amend Y’s EHC Plan.
19. From September 2023, Ms X said both she and the SENCO at Y’s school chased the Council for a copy of the amended EHC Plan following the annual review in May 2023.
20. In early October 2023, Ms X completed an application form for Y’s secondary school place. Ms X expressed a preference for School Z. Ms X chased this up with the Council as she did not hear anything. In February 2024, Ms X’s case officer discovered the application form she had sent in October 2024. In late February 2024, the Council consulted with several schools, including Ms X’s preferred school, School Z. The Council sent these schools a copy of Y’s EHC Plan from when they lived in a different council area as it had not issued a new EHC Plan since Y moved into the area.
21. In mid-March 2024, Ms X complained to the Council about the way it handled Y’s placement for secondary school. Ms X said Y currently did not have a placement.
22. In April 2024, the Council responded to Ms X’s complaint. The Council apologised for Ms X’s experience so far and apologised it did not issue an updated EHC Plan by 15 March 2024. The Council said it would issue an amendment notice and send this to the schools it consulted with.
23. Ms X asked the Council to consider her complaint at the next stage of its process. Ms X said Y did not have a place for secondary school yet.
24. On 17 April 2024, the Council issued a proposed amended EHC Plan for Y. The Council sent consultations to three schools accompanied by the amended EHC Plan.
25. On 10 May 2024, the Council held an emergency annual review of Y’s EHC Plan. The meeting notes showed the Council wanted to carry out minor amendments to the Plan and did so at the meeting.
26. Following the annual review meeting, the Council sent Ms X a proposed amended EHC Plan on 13 May 2024. After Ms X sent her comments back, the Council issued a further proposed amended EHC Plan on 14 May 2024.
27. The Council sent Ms X its final response to her complaint on 17 May 2024. The Council said it consulted with schools in late February 2024, but her caseworker then went on sick leave. The Council upheld Ms X’s complaint for the delay consulting with schools.
28. On 21 May 2024, the Council sent Ms X a final EHC Plan, but did not name an educational placement in Section I as no school had agreed to offer Y a placement yet. In late May 2024, Ms X’s preferred school choice responded and said it could not offer Y a place. At this point Ms X agreed to name another school, School W in Y’s EHC Plan.
29. On 30 May 2024, the Council issued a further final EHC Plan for Y, naming School W.
30. In early June 2024, Ms X appealed Y’s school placement to the SEND Tribunal.

Analysis

31. The Council initially carried out an annual review of Y’s EHC Plan in May 2023. The outcome of this was that the Council decided to amend Y’s EHC Plan. Notes from the annual review meeting showed the Council proposed to amend sections B and F. The Council should have sent Ms X amendments and a final EHC Plan within 12 weeks of the annual review meeting. Failure to do so was fault.
32. After the May 2023 annual review the Council sent Ms X a proposed amended EHC Plan on 17 April 2024 and did not send Ms X a final EHC Plan until after a further emergency annual review in May 2024.
33. Ms X sent the Council her application for Y’s secondary school placement in October 2023. The Council has provided no evidence that it sought to action this, nor responded to Ms X’s attempts to follow up a response to this form. It was not until February 2024, that the Council discovered Ms X’s application form and at that point consulted with schools. This was fault.
34. The law says the Council must review and carry out any amendments to a child’s EHC Plan by 15 February in the calendar year the child is transferring into secondary school. The Council did not do this. As the Council had not issued an amended EHC Plan for Y at this stage it sent schools the older EHC Plan it had from Y’s previous local authority. It was not until mid-April 2024, after it had proposed amendments to Y’s EHC Plan that the Council sent an updated version of Y’s Plan to the schools it had consulted. This was fault.
35. As I have found fault I need to consider what injustice this caused Ms X and Y. School Z, who was Ms X first choice for Y rejected Y’s application. I cannot say whether School Z would have offered Y a place but for the Council’s delays, however this will have caused Ms X uncertainty about what would have happened had the Council not amended Y’s EHC Plan and consulted with schools late.
36. Ms X has decided to appeal the school placement named in Y’s EHC Plan. The Council’s delays issuing a final EHC Plan delayed Ms X’s appeal right by several months. Had the Council agreed Y’s school placement by 15 February 2024, Ms X would have had more time before Y was due to start a placement to appeal to the SEND Tribunal.

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Agreed action

37. Within one month of my final decision, the Council agreed to carry out the following:
1. Apologise to Ms X for the above faults.
2. Pay Ms X £500 to acknowledge the avoidable distress and uncertainty experienced because of the Council delaying issuing an amended EHC Plan, delaying consulting with secondary schools and for the level of communication she received.
38. Within two months of my final decision the Council agreed to carry out the following:
1. Look at what went wrong in this case and consider what changes the Council can make to:
1. Ensure it issues an amended Education, Health and Care Plan within 12 weeks of an annual review meeting.
2. Ensure it has procedures in place to enable it to review and amend Education, Health and Care Plan’s by the statutory deadlines for children and young people who are at key phases of education.
39. The Council should report back to the Ombudsman outlining the measures or changes it is putting in place.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I have completed my investigation and found the Council was at fault and this caused injustice. The Council has agreed to the above actions 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