Summary: Ms X complained about the Council’s delays in issuing her son’s Education, Care and Health Plan in time for phase transfer and following an annual review in March 2024. She also complained about lack of suitable education between September 2024 and December 2024 when the Council failed to find a secondary school place and delay in the Council’s response to her complaint. We found the Council was at fault for lack of accurate record keeping, delay in issuing Plans and responding to Ms X’s complaint. The Council agreed to pay Ms X for the avoidable distress and uncertainty and issue reminders to staff.

The complaint

1. Ms X complains that in early 2024 the Council failed to:
• review S’s EHC Plan before 15 February 2024 in time for his transition to a secondary school in September 2024;
• name a school in S’s final EHC Plan following the March 2024 annual review;
• communicate with her effectively about what setting S would attend in September 2024; and
• respond to her complaint in line with its complaints policy.
2. Ms X said that because of the Council’s failures S had no secondary school to attend in September 2024 and was forced to stay in his primary school. The school the Council said S would attend in January 2025 has not been built and there were no other arrangements in place for him to attend, as he could not continue at his primary school after December 2024.
3. Ms X said this has caused her family avoidable distress and uncertainty, as the family continue to be uncertain about when S could attend the school that has yet to be built and about what would happen in the meantime.
4. Ms X would like the Council to tell her what provision S will get from January 2025, confirm when S will have a school to go to and to plan a considered transition for S to be able to attend his school. Additionally, she would like the Council to offer alternative education for S while his school is being built. She would also like the Council to revise its practices to ensure this does not happen to another family.

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The Ombudsman’s role and powers

5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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. (Local Government Act 1974, sections 26B and 34D, as amended)
9. 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.
10. 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.
11. 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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What I have and have not investigated

12. I did not investigate Ms X’s complaint about the suitability of the Council’s bespoke educational programme it put in place for S in January 2025. This is because this is a new complaint that the Council has not had a chance to respond to.

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How I considered this complaint

13. As part of the investigation, I have:
• considered the complaint and Ms X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
14. Ms X and the Council have 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

EHC Plans reviews

15. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils.
16. Councils must review an EHC Plan at least every 12 months.
17. Within two weeks of the review meeting the school must prepare and send out a report setting out any amendments to the EHC Plan it is recommending.
18. Within four weeks of the review meeting, the Council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent of its decision.
19. If the plan needs to be amended, the Council should start the process of amendment without delay.
20. The Council must send the draft EHC Plan to the child’s parent and give them at least 15 days to give views and make representations on the content.
21. When changes are suggested to the draft EHC Plan and agreed by the Council, it should amend the draft plan and issue the final EHC plan as quickly as possible, but within eight weeks of the date the Council held the annual review meeting.
22. Where the Council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHC Plan.
23. In any case the Council must notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so.

EHC Plan reviews for phase transfers

24. An EHC Plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for 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 of the transfer at the latest for transfers into or between schools. (SEN Code paragraph 9.179). The transfers from primary school to secondary school is one of the key transfers.

Council’s complaints policy

25. The Council’s complaint procedure has two stages. The Council says it will acknowledge complaints at both stages in three working days. It will respond to stage one complaints in 10 working days and stage two complaints in 20 working days.

What happened

26. In February 2024 Ms X complained to the Council. She said the Council should have reviewed S’s EHC Plan and issued a final amended plan by now, but it did not. She also said the Council should have named a school for S and prepare him for the transfer in September 2024.
27. In early March 2024 the Council held an annual review of S’s EHC Plan.
28. Ms X contacted the Ombudsman in late June and asked us to consider her complaint.
29. Within few days of this the Council responded to Ms X’s complaint. It accepted that it was at fault for:
• the delay in issuing S’s final amended Plan;
• not naming a school in the final EHC Plan; and
• the delay in responding to her complaint.
30. Ms X was unhappy about the Council’s response, and she asked the Council to consider her concerns further. She said that despite the Council’s response she and S still had no idea what school he would be going to and therefore could not prepare for his transition which was causing unnecessary distress for the family.
31. In mid-July the Council told Ms X that it would not consider her complaint further because it upheld her original complaint fully and she had not provided any new information. Additionally, the Council said that S now had a place at a suitable secondary school.
32. In September we told Ms X that we would not investigate her complaint because it seemed the Council addressed her concerns, and S now had a place at a secondary school. Soon after Ms X contacted us and said:
• S was still not in a secondary school and the Council told her S would hopefully transition into secondary school in January 2025 once building works and staffing was sorted;
• the Council had not issued a final EHC Plan following the annual review;
• Between September 2024 and December 2024 S remained in his primary school with another student in a similar situation; and
• S could temporarily attend his primary school but had to transition to another part of the building and new staff members, which caused additional unnecessary stress to him.
33. Because of this, in November 2024, we decided to investigate Ms X’s complaint.
34. Around this time Ms X told us that S was attending his primary school, where for two days a week he had provision delivered by a suitably trained teacher, but the other three days a week it was a teacher not trained to work with pupils with special educational needs. She also said this provision would stop after December 2024.
35. In early January 2025 the Council agreed to put a bespoke educational program in place for S to access away from school. This consisted of 4 hours two days a week with the plan to increase this to five hours. The Council also met with Ms X to discuss the difficulties the family were experiencing because of the lack of agreed placement for S and poor communication with the Council.
36. In February Ms X told us that the Council’s communication had not improved, even after the January 2025 meeting.

Analysis

Transition EHC Plan review

37. The Council should have issued S’s final amended EHC Plan by 15 February 2024 ready for his transition into a secondary school in September 2024. This did not happen and is fault.
38. The records show the annual review meeting took place in March 2024, which is already past the statutory date.
39. This caused Ms X and S avoidable distress and uncertainty about what, if anything would be in place for him in September 2024. It also meant that there was little to no preparation for a transition plan for S.

EHC Plan annual review in March 2024

40. The Council accepted that it was at fault for the delay in issuing S’s draft and final EHC Plan following his annual review in March 2024 and leaving section I of his EHC Plan blank.
41. This caused Ms X and S further avoidable distress and uncertainty about what provision would be in place for him in September 2024.
42. In June 2024 the Council told Ms X that S had a place at a secondary school, and he would be able to start in September 2024. It is not clear when the Council first found out about the delay in building works that meant S would not be able to start until January 2025.
43. The Council told us that it considered the provision S had available at his primary school between September and December 2024 suitable and that it had met his needs. Because of this, the Council considered it did not need to provide alternative provision for S away from school.
44. We have not seen any contemporaneous records showing how the Council arrived at this decision, how it considered the provision met S’s needs and that it communicated to Ms X it considered it was complying with its duty to provide alternative provision. This is fault.
45. This caused Ms X avoidable uncertainty and frustration, as she believed the provision was not always suitable.
46. However, S attended his primary school, and had access to some education, although we understand Ms X is not entirely happy with the Council’s actions. Despite the lack of contemporaneous records, we cannot say, even on balance of probabilities what provision S missed out on, and if the Council’s decision would have been different had it kept appropriate records.
47. In November 2024 Ms X told us that S’s primary school told them he would not be able to return there in January. We would expect the Council to act promptly to check if it needed to take any further action to meet its alternative provision duty. The Council did not take action until January 2025, we consider this to be fault.
48. This resulted in further avoidable uncertainty and frustration for Ms X and S about what would happen after December 2024.
49. Ms X told us that she did not consider the bespoke educational package the Council put in place for S in January 2025 was a suitable equivalent to a full-time education. I have not investigated this part of her complaint, as this is a new complaint the Council had not had the chance to address.

Complaint handling and Communication standards

50. The Council accepted that it was at fault for the significant delay in responding to Ms X’s complaint. This was caused by a significant increase in complaints the Council was receiving.
51. The records also show that between February 2024 and July 2024 Ms X contacted the Council on many occasions chasing it for updates of the provision it would put in place for S as of September 2024. The Council failed to respond to many of her communications, and this is fault.
52. This caused Ms X avoidable distress following the March 2024 annual review process.
53. We recommend the Council should pay her £300 to recognise the distress she went through while she was waiting for the Council’s complaint response and updates on provision.

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Agreed action

54. Within one month of the date of the final decision statement, the Council will:
• apologise to Ms X and S for its failure to provide S 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 Ms X £600 to recognise the distress, frustration and uncertainty she and S experienced;
• pay Ms X £200 to recognise the avoidable time and trouble she experienced as a result of the Council not following its complaints procedure;
• share this decision with relevant staff to ensure that the Council keeps relevant contemporaneous notes about any decision it makes about its section 19 duty;
• remind relevant staff of the importance of issuing EHC Plans within the statutory timeframes, whether this is in time for phase transfer or following an annual review.
55. The Council should provide us with evidence it has complied with the above actions.

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Final decision

56. We have found the Council was at fault for lack of contemporaneous record keeping about its section 19 duties, delay in issuing EHC Plan in time for a phase transfer and following an annual review and not following its complaint policy. The Council agreed to pay Ms X a remedy and issue reminders to staff.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman