Summary: The Council failed to update an Education, Health and Care Plan within statutory time limits for secondary transfer and failed to secure occupational therapy provision in the Plan. This led to missed provision, uncertainty, a rushed transition, and loss of appeal rights at a crucial point. The Council has agreed to apologise and make a symbolic payment. The complaint is upheld.

The complaint

1. Ms X complains on behalf of her child, Y:
• the Council delayed in naming a secondary school and amending Y’s Education, Health and Care Plan (EHC) within statutory timescales for phase transfer;
• the Council failed to secure occupational therapy (OT) provision in the EHC Plan from early 2024;
• the Council repeatedly failed to respond to emails.
2. Ms X says this caused distress and uncertainty about the placement and Y missed out on OT required to support various sensory and physical health difficulties.
3. Ms X also complains about the Council’s decision to specify mainstream education settings instead of specialist settings.

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The Ombudsman’s role and powers

4. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
7. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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.
9. 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

10. I have investigated the delay in amending the EHC Plan for phase transfer to secondary school and the failure to secure special educational provision in an EHC Plan for six months.
11. I have not investigated the Council’s decision to name a mainstream school instead of a specialist placement. If Ms X disagreed with the named placement, she had two rights of appeal in 2024 which we would have expected her to use. The Ombudsman cannot determine what type of school a pupil should attend, only the Council or Tribunal can decide this.

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How I considered this complaint

12. I considered evidence provided by Ms X and Council as well as relevant law, policy and guidance.
13. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
14. 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

Relevant law and guidance

15. 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 council can do this.

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 between primary school to secondary school.

17. There is a right of appeal to the Tribunal against:
• the description of a child or young person’s special educational needs, the special educational provision specified, the school or placement or that no school or other placement is specified;

• an amendment to these elements of an EHC Plan.

18. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan of (Section 42 Children and Families Act).

Key events

19. The Council carried out an EHC needs assessment and issued a first EHC Plan for Y in early 2024. This named the current primary school which Y was due to leave in Summer 2024, but not the next placement for secondary.
20. The Council was required to amend the EHC Plan to name the secondary placement no later than 15 February 2024. It did not do so.
21. Ms X complained about delay in Spring 2024. Ms X wanted a specialist school named and said it would now be too late for her to appeal for the Tribunal to decide the placement in time for Y starting secondary school. Ms X also said the EHC Plan was not being fully implemented as OT provision was not in place.
22. The Council’s complaint response acknowledged delay. It said it was reconsulting a school which had refused a place as it considered Y’s needs could be met there. It said the response was due by the end of June. It said staff changes had been an issue with communication, but Y now had a new caseworker allocated.
23. The Council acknowledged there had been an error in not securing the OT provision in the existing Plan since early 2024. It said it had now made the OT referral, and this was being prioritised.
24. The Council did not offer a financial remedy for the missed provision or delay.
25. In September, Y started at the mainstream school reconsulted by the Council in the Summer. The Council did not amend and issue the final EHC Plan to name this school for another two months.

Council’s response to my enquiries and draft decision

26. The Council told me it has not received an appeal from Ms X about the amended final Plan and named school.
27. The Council says Y has four OT therapy sessions specified per year. It acknowledges one or two sessions will have been missed and that a symbolic financial payment for missed sessions and the EHC Plan delay may be appropriate.
28. The Council has provided evidence to show that it has processes to secure EHC Plan provision and a clear timeline in place to manage phase transfers for September 2025.

Analysis

Fault

29. The Council failed to amend the EHC Plan by 15 February which is the statutory deadline for phase transfers. This is fault.
30. The Council was nine months late amending the Plan and four months late identifying a school. This is fault.
31. The Council failed to secure OT provision for six months, this is fault.

Injustice

32. The fault caused unnecessary time, trouble, distress and uncertainty.
33. The purpose of the 15 February deadline is to allow time for transition and to ensure where there is disagreement, appeals can be heard by the Tribunal before the new school year. Ms X lost her appeal right at this crucial time. While she gained an appeal right in late 2024, this was after Y had started at their new school meaning that if Ms X wanted to challenge the placement Y would have to change schools. The delay of the appeal right is a significant injustice.
34. Y missed out on OT input. Section F of the Plan says Y was to receive:
• OT through direct sessions, creation of advice / programmes and ongoing support for school staff to meet Y’s needs;
• A daily sensory circuit and regular movement breaks and a bespoke sensory diet to support attention, focus and postural control;
• A fine / gross motor skills programme;
• Each programme to be delivered twice a week with an adult under direction of an Occupational Therapist.
• Four direct therapy sessions (45 minutes) plus liaison / preparation time per year.
• Termly reviews in addition.
35. The provision missed was not just one or two direct sessions, but the absence of a bespoke programme and advice / training of staff who were to deliver daily / weekly sessions over a period of six months.
36. As OT was required to address specific needs on a daily / weekly basis the loss of professional input was a significant injustice.

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Action

Within four weeks of my final decision:

37. The Council has agreed to apologise to Ms X.
38. The Council has agreed to pay Ms X, on behalf of Y, £600 to recognise the loss of direct and indirect OT input over a period of six months.
39. The Council has agreed to pay Ms X £400 to recognise the impact of delay in naming the secondary school, updating the Plan and the loss of appeal rights.
40. The Council has agreed to provide us with evidence it has complied with the above actions.

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Decision

41. I find fault causing injustice. I am satisfied the actions set out above are a suitable remedy for the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman