The Investigation

The complaint

1. Mrs X complained about the Council’s decision to not treat Y’s Education, Health and Care (EHC) Plan review as a key-stage phase transfer review. She also complained about the Council’s complaint handling. She says the lack of a review frustrated her appeal rights, which has consequently left her son without provision and has caused stress. She wants compensation and improvements to the Council’s processes.

Legal and administrative background

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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 law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), 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 report.

5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Relevant law and guidance EHC Plans

6. A child or young person with special educational needs may have an 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.

7. 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.

• Section J: Details of any personal budget required to fund the provision in the EHC Plan.

Reviewing EHC Plans

8. 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 then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and the Special Educational Needs and Disability code of practice paragraph 9.176) Case law found councils must issue the final amended EHC Plan within a further eight weeks.

Key-stage transfer reviews

9. A council must review and amend an EHC Plan in enough time before a child or young person moves between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution.

10. Regulation 18(1)(b) of The Special Educational Needs and Disability Regulations 2014) states that “where a child or young person is within 12 months of a transfer between phases of education, the local authority must review and amend, where necessary, the child or young person's EHC plan before … (b)15 February in the calendar year of the child's transfer…”.

11. Paragraph 9.179 of the Special Educational Needs and Disability code of practice (which is statutory guidance) states that “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.”

12. One of the key-stage transfers is between primary school and secondary school.

13. The phase transfer review process is the same as the annual review process; the only difference is the deadline by which they must be completed.

14. Phase transfer reviews were considered in a court decision: M, R (on the application of) v East Sussex County Council [2009] EWHC 1651 (Admin). The judgment says:

“…the authority's refusal, when C was within 12 calendar months of a transfer between phases of his schooling, to amend the statement so as to name the school which C should be attending for secondary education was a failure to comply with the terms of regulation 19 and was therefore unlawful. It is the phase change, not the change of any particular institution, which triggers the obligation to amend.”

The Council’s complaints procedure

15. The timescales in the Council’s complaints policy for responding to (non-statutory) complaints are:

• acknowledgement of a complaint within five working days and all reasonable steps to respond within another 10 days;

• responding to a stage two complaint within 30 working days. If that was not possible, it would advise the complainant of the likely response time.

How we considered this complaint

16. We have produced this report following the examination of relevant files and documents and an interview with the complainant.

17. We gave the complainant and the Council a confidential draft of this report and invited them to comment. We took any comments received into account before the report was finalised.

What we found

What happened

18. Y is a child with special educational needs. He had an EHC Plan before the period this complaint considers. In March 2023 the Council issued a final EHC Plan.

19. The Council held an annual review meeting on 18 January 2024.

20. On 13 February the Council’s officer wrote to Mrs X advising the Council planned to make changes to Y’s EHC Plan in line with recommendations in reports submitted for the annual review. The school noted that Y was in a key-stage transfer year. But the Council did not intend to move him to another school for the change of key-stage. So there was no requirement for it to issue Y’s EHC Plan by 15 February, as he would not be transferring between settings.

21. On 14 February Mrs X complained, including that the phase transfer process did apply.

22. On 15 February 2024 the Council issued a draft EHC Plan.

23. Mrs X contacted the Council complaining about a delay in revising Y’s EHC Plan and commenting on the draft Plan. The Council issued a revised draft Plan.

24. The Council’s 10 May complaint response apologised it had not formally responded earlier to the complaint. It confirmed its view about the key-stage phase transfer process. It said it had sought advice from its legal team about this.

25. On 24 May Mrs X asked to escalate her complaint to the second stage of the Council’s procedure.

26. The Council issued a final EHC Plan on 17 July 2024. The Plan did not name a school at Section I. It says, from September 2024, the Council would fund a personal budget so Mrs X could buy named types of education out of school for Y.

27. On 25 July Mrs X complained to us. We asked the Council to provide a response at the second stage of its complaints procedure.

28. On 11 September the Council provided its stage two complaint response. This partly upheld Mrs X’s complaint about a delay in the response to her first complaint and in the EHC Plan review. But it did not uphold her complaint about not completing a phase transfer review. Mrs X then complained to us.

29. At the beginning of October Mrs X appealed the contents of Y’s EHC Plan, on the grounds of some of the descriptions in Section B and some of the provision outlined in Section F.

Conclusions

30. The Council said it felt it was not necessary to amend Y’s EHC Plan before his transfer to secondary education. This was because he was not moving educational establishment.

31. The courts have decided in caselaw (see paragraph 14) that it is the phase transfer which triggers the duty to review EHC Plans by 15 February, not a change in educational placement. Therefore, the Council’s duty to review Y’s EHC Plan by 15 February was triggered when Y came within 12 months of transferring from primary to secondary school, irrespective of the fact it was not intended that he would move placement. So to not carry out a review was fault.

32. The Council could not make the decision that Y would stay on at the same school, unless it had completed an annual review of their EHC Plan. So it needed to complete the phase transfer to establish if Y would stay there.

33. The Council issued Y’s final EHC Plan at the end of July, five months after it should have issued the plan (in February), and is therefore fault. This caused injustice because Mrs X did not get a right to appeal the EHC Plan until July.

34. The Council delayed both its first and second stage complaint responses. That delay was fault.

Wider implications

35. One of the reasons for issuing this report is because of the systemic issues raised by the complaint. We have seen several other councils adopting the same approach as the Council has in this complaint.

Recommendations

36. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

37. In addition to the requirements set out above, within three months of the date of this report, the Council has agreed to:

• apologise to Mrs X. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology we have recommended in our findings;

• make a symbolic payment to Mrs X of £300 for the frustration and distress caused by the delay in issuing Y’s EHC Plan and the resulting delay in Mrs X accessing her appeal rights; and

• issue guidance to staff advising that, irrespective of whether a child is changing educational establishment, councils must review a child’s EHC Plan in line with the statutory guidelines when a child is changing a phase of education.

Decision

38. There was fault by the Council which caused injustice to Mrs X. The Council has agreed to our recommendations to remedy the injustice, so we have completed our investigation.

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