Summary: Mrs X complained about the Council’s delays with issuing her child’s Education, Health and Care Plan for post-16 transition. There was fault by the Council which caused injustice to Y and Mrs X. The Council will take action to remedy the injustice caused.

The complaint

1. Mrs X complained about the Council’s delays with issuing her child’s (Y’s) Education, Health and Care Plan for post-16 transition. As a result, Mrs X said there was a delay with naming Y’s post-16 placement and that Y was unable to engage fully with the post-16 transition process.
2. Mrs X also said the matter caused her distress and the time and trouble chasing the Council for updates.

Back to top

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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
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).

Back to top

What I have and have not investigated

7. I have investigated matters from November 2023 to June 2024. This covers the period when Y’s EHC Plan review and a phase transfer meeting was held to when the Council issued Y’s final EHC Plan.

Back to top

How I considered this complaint

8. I have discussed the complaint with Mrs X. I have considered the information Mrs X and the Council provided.
9. I sent Mrs X and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

Back to top

What I found

Law and guidance

10. 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 which include the special educational provision needed by the child or the young person (section F) and the name and/or type of educational placement (section I).
11. The council has a duty to secure the specified special educational provision (Section F) in an EHC Plan for the child or young person. The Courts have said this duty to arrange provision is owed personally to the child and is non delegable.
12. Councils must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The annual review process includes a review meeting, and the subsequent decision, which have appeal rights. After an annual review meeting, councils must decide to either keep the EHC Plan unchanged or amend the Plan or cease the 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)
13. The SEN code of practice states that when a council issues a decision to amend notification to a parent/carer after an EHC Plan annual review meeting (should be within 4 weeks), it must also send the proposed amendments. The final Plan must then be issued within 8 weeks. So, the timescale from the annual review meeting to the final EHC Plan should take no longer than 12 weeks. Case law: R (L, M, and P) v Devon County Council [2022].
14. 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.
15. The Ombudsman expects councils to follow statutory timescales set out in the law, Regulations and Code. We are likely to find fault where there are significant breaches of those timescales.
16. Parents do not have a right of appeal about the content of a Plan until a final EHC Plan is made. When sending the final amended EHC Plan, the council must notify the child’s parent or the young person of their right to appeal to the Tribunal and the time limit for doing so.

Key events

17. Y has special educational needs (SEN) and has an Education, Health and Care (EHC) Plan.
18. On 1 November 2023, the Council held an annual review of Y’s EHC Plan and a phase transfer meeting for her move from secondary school to a post-16 setting. Professional reports were submitted the same month as part of the annual review process. This included a SALT report.
19. In March 2024, Mrs X made a complaint to the Council about its failure to issue Y’s final EHC Plan following the November 2023 annual review meeting. Mrs X complained about the Council’s delays and as a result she said Y’s post-16 placement and education were at risk. Mrs X said she was concerned the Council would be unable to issue Y’s final Plan in time to meet the 31 March deadline in preparation for her post-16 transition process.
20. In mid-April 2024, the Council issued its stage 1 response to Mrs X’s complaint. It accepted its poor communication with Mrs X and its delays with amending and finalising Y’s EHC Plan. The Council said its delays were due to staffing issues and the lack of some professional reports it needed to ensure Y’s Plan was accurate. The Council said it had sought the outstanding reports from the professionals involved. It would then consider what additional support should be added to Y’s final EHC Plan. The Council said it would work with Mrs X and the prospective post‑16 placements to ensure Y’s Plan accurately reflected her SEN for her transition.
21. Mrs X asked the Council to escalate her complaint due to its ongoing delays and the effect it was having on Y’s mental health. Mrs X asked the Council to secure Y’s placement at her preferred post-16 setting as soon as possible and asked it for an update on Y’s final EHC Plan.
22. In its final response, the Council apologised again for its delays with issuing Y’s final EHC Plan and said it was aware of the impact its delays had on families. The Council said after it completed a robust review, it was confident that it was doing all it could to address the shortage in resources. The Council said therefore, it was not appropriate to expedite Y’s case because of a stage 2 complaint. The Council confirmed it could not add any further explanation to its stage 1 response.
23. Mrs X remained dissatisfied, and she made a complaint to the Ombudsman.
24. Y continued to receive full time education and support/provisions contained in her previous EHC Plan.
25. On 20 June 2024, the Council issued Y’s final EHC Plan with a post-16 setting named for the September 2024 admission. The provisions in the final Plan included:

• to provide Y with small group English and Math classes.
• to provide Y with 25% extra time, a reader and a scribe or laptop for any exams that take place.
• education staff will observe SALT sessions and carry out the activities 2 times a week for a minimum of 30 minutes.
• the Speech and Language Therapist (SALT) will discuss the therapy sessions with the teaching assistant and the 1:1 teaching assistant will embed the SALT targets into class activities where appropriate and relevant.

26. Mrs X said after the final Plan was issued, Y attended some settling sessions and a welcome event at the named post-16 placement. But she maintained Y did not experience a robust post-16 transition process due to the Council’s delays with issuing her final EHC Plan.

Analysis

27. The Council failed to issue Y’s final EHC Plan twelve weeks after the annual review meeting was held in November 2023. It also failed to issue the final amended Plan by 31 March 2024 in preparation for Y’s transition to a post-16 setting. These were not in line with the statutory timescales set out in the SEND Code of Practice. The Council issued Y’s final EHC Plan in June 2024 which means it took the Council approximately 33 weeks to complete the review process. As a result, Y’s final EHC Plan was delayed by approximately 21 weeks. This was fault. The matter caused Mrs X distress, frustration, avoidable time and trouble and delayed her appeal rights to the Tribunal if she disagreed and/or wished to contest the contents of the Plan. I find the delay also meant Y was disadvantaged by not receiving some specialist provisions contained in the final Plan sooner.
28. I note Mrs X said she felt Y did not experience a full and robust transition process and that Y’s mental health has been affected due to the Council’s delays with issuing her final Plan. Mrs X also said since Y resumed her post-16 placement in September 2024, she had only attended two full days and her mental health has been exacerbated. While I note, Mrs X’s point, the scope of this investigation as set out in paragraph 7 above covers the period from November 2023 to June 2024. Therefore, I cannot consider any matter outside of this timeframe.
29. I find the injustice caused to Y as stated in paragraph 27 was mitigated. This is because Y continued to receive full time education/support during the delay period and once the final Plan was issued, Y attended some transition sessions at the post-16 placement prior to the September 2024 admission date.
30. The Council already accepted its poor communication with Mrs X and its delays with issuing Y’s final EHC Plan. This was fault. While I note the Council apologised to Mrs X, I consider it as a partial remedy, and this will be addressed in the ‘agreed action’ section below.
31. Based on our recent investigation and decision statements relating to the Council’s EHC Plan review process, I note there is an ongoing issue with the Council adhering to statutory timescales. We have recently made recommendations that the Council produce an action plan to demonstrate how it will improve its service to meet statutory timescales. We will monitor the actions the Council takes to ensure compliance with those and similar recommendations. I have therefore not made any service improvement recommendations in this case. The issues I have identified are already being addressed through other cases we have investigated.

I find no fault by the Council with how it responded to Mrs X’s complaint under its stage 2 complaint process. This is because the Council had considered and found it was not appropriate to expedite Y’s case to a stage 2 complaint as it confirmed it had no further explanation to add to its previous response at stage 1. This was not fault.

Back to top

Agreed action

32. 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 Y and make her a symbolic payment of £250 to acknowledge the injustice caused to her by the Council’s failings as identified above. The apology should be in accordance with our guidance, Making an effective apology
• apologise in writing to Mrs X and make her a symbolic payment of £150 to recognise the distress, frustration and uncertainty caused to her by the Council’s delays with issuing Y’s final amended Education, Health and Care Plan and its poor communication with her. The apology should be in accordance with our guidance, Making an effective apology

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

Back to top

Final decision

34. 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

Back to top

Investigator's decision on behalf of the Ombudsman