Summary: Ms X complained the Council delayed reviewing her child, Y’s, Education, Health and Care Plan at a school transition point, and that the delay meant that Y missed out on a place at the family’s preferred school. We found fault causing injustice. The Council has apologised to Ms X but should agree to make a payment to her to remedy the injustice caused.

The complaint

1. Ms X complained that the reviewing and issuing of her son, Y’s, final (amended) Education, Health and Care (EHC) Plan was subject to significant delay at the infant-to-junior school transition point. She said that the delay meant that Y was not offered a place at their preferred school, and preparations had to be made for him to transition to a different junior school without any certainty that he would be offered a place there. Ms X said the delay caused her and Y uncertainty and distress.

Back to top

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 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)
4. 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)
5. 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

How I considered this complaint

6. I have:
• considered Ms X’s written complaint and supporting papers;
• talked to Ms X about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint; and
• given Ms X and the Council the opportunity to comment on a draft version of this statement before making my final decision.

Back to top

What I found

Legal and administrative background

Education, health and care plan

7. 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 First-tier Tribunal (Special Educational Needs and Disability) or council can do this.

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 SEN Code paragraph 9.176) 
9. 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.
10. 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. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Key transfers pre-16

11. The 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. 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 are: 

• early years provider to school;  
• infant school to junior school;  
• primary school to middle school;  
• primary school to secondary school; and  
• middle school to secondary school.  

Appeal rights

12. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

What happened

13. Below is a summary of events that are either relevant to my investigation or are included to provide context. It is not an exhaustive chronology of every exchange between parties.

The annual review and transition planning process

14. Y has special educational needs and had an EHC Plan that was finalised in July 2023. Y was due to transition from infant school to junior school in September 2024.
15. An amended EHC Plan was issued for Y on 15 February 2024, without a review process having taken place.
16. The Council carried out an annual review of Y’s EHC Plan on 14 May.
17. Y attended his first transition session at the junior school that was federated with his infant school, on 12 June, without having been offered a place there.
18. The Council issued consultations to local schools (including both Ms X’s preferred school and the school federated with Y’s infant school) on 24 June.
19. The junior school at which Y was attending transition sessions confirmed on 4 July that it agreed to be named as the educational setting in Y’s amended Plan.
20. The Council issued Y’s final (amended) ECH Plan on 12 July.
21. Y started junior school in September 2024.

The complaint

22. Ms X complained to the Council on 18 June that, following the review meeting of 14 May, the Council had not issued a decision to amend, maintain or discontinue Y’s EHC Plan, and therefore was in breach of its duties.
23. The Council responded to Ms X’s complaint on 2 July, at stage one of its complaints procedure. The Council acknowledged there had been delays in the annual review process, but said that the Council had been unable to adhere to the statutory time frame because Y’s school had not submitted the annual review report to the Council until 12 June, following the review meeting of 14 May.
24. The stage one response did not mention that Y’s plan should have been reviewed, amended and re-issued by 15 February because it was a pre-16 transition point.
25. Ms X remained dissatisfied and asked for her complaint to be escalated to stage two. Ms X said that a transition review should have happened before February, and that her preferred junior school had been unable to offer Y a place based on the content of his outdated EHC Plan. She said that the only reason Y now had a school place confirmed for September was because she had worked informally with the executive headteacher of his infant school. The executive head had allowed Y to attend much-needed transition sessions to the associated junior school “at risk” that he may not have been offered a place there when his amended EHC Plan was available.
26. Ms X described the emotional, mental, and financial impact that the uncertainty had had on her and Y. She asked for an assurance that the Council would adhere to the statutory timescales at future review points.
27. The Council’s stage two response of 2 September acknowledged and apologised for the following failings:
• Y’s EHC Plan should have been reviewed before an amended version was issued on 15 February 2024;
• Y’s infant school had submitted the necessary documentation to the Council on the day of the annual review meeting, but this had not been processed correctly within the Council; and
• These failings should have been acknowledged in the Council’s stage one response.
28. The Council response included an acknowledgement that the service provided by the SEND Assessment Service had not been up to standard. It also explained positive changes being made to the Service, including staff restructuring and additional training. It stated its intent to adhere to statutory timescales in future.

Analysis

29. As the Council has recognised, a reviewed and amended EHC Plan for Y should have been finalised and issued by 15 February 2024, because he was at a pre-16 transition point. Although an amended plan was issued on that date, it was not based on the outcome of a review of Y’s needs, which the Council has recognised was fault. And so, although the issuing of an amended plan would have given rise to a right of appeal against the school placement that was named in that plan, I find that it would be unreasonable to expect Ms X to have used that right at that time, as the Council had not carried out a proper review in advance of issuing the amended EHC Plan, which meant it was not up-to-date.
30. A properly reviewed and amended EHC Plan was issued on 12 July 2024, a delay of five months, which was fault.
31. I find the avoidable delay was frustrating for Ms X, put her to avoidable time and trouble in chasing an outcome and pursuing a complaint, and delayed her ability to appeal any amended final plan, had that proved to be necessary. Whilst I cannot know whether the production of an amended plan by 15 February would have resulted in the offer of a place at Ms X’s preferred school, I find that the delay caused ongoing uncertainty and distress for both Ms X and Y in terms of his transition to junior school. And so, I find the Council’s fault caused them injustice.
32. The stage two Council response went some way to remedying the injustice caused to Ms X and Y by acknowledging the Council’s faults and offering an appropriately detailed and genuine apology. However, I consider that there is still significant unremedied injustice arising from the Council’s fault, and so I recommend that the Council should make a symbolic payment in recognition of that.
33. I have decided not to make a service improvement recommendation that the Council should review how it deals with reviews of EHC Plans at pre-16 transition points. That is because:
• Ofsted carried out a full Area SEND inspection of Derbyshire Local Area Partnership, of which the Council is part, in September 2024. The recommendations from that are being implemented throughout 2025;
• The Council has recently remodelled its SEND service (this went live in September 2024), which included taking on additional staff to clear backlogs, and restructuring its assessment and review teams; and
• We have made similar recommendations to the Council in relation to several recent cases, with which we expect it to comply. I do not consider that there would be any additional value in repeating these recommendations.

Back to top

Actions

34. To remedy the injustice caused by the identified fault, and within four weeks of my final decision, the Council has agreed to make a payment to Ms X of £350 for the impact caused by the failure to adhere to statutory timescales when reviewing and issuing an amended EHC Plan for Y, at the point of transition to junior school.
35. This payment is a symbolic amount in line with our published guidance on remedies.
36. The Council should provide us with evidence it has complied with the above action.

Back to top

Decision

37. I have found fault by the Council causing injustice to Ms X and Y. I have completed my investigation as the Council agreed to carry out the above action as a suitable way of remedying the injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman