Summary: There was delay in completing a phase transfer review of an Educational, Health and Care Plan and fault in the way a Council transferred the Plan to a new authority when Y moved home. This caused unnecessary time, trouble, distress and Y missed out on three weeks of college. The Council will apologise, make a symbolic payment and service improvements. The complaint is upheld.

The complaint

1. Ms X complains the Council failed to secure a smooth transition when it knew her child, Y, would be leaving her education placement in Summer 2024. Ms X says the Council failed to ‘source any placement’, or approach another council, when it knew Y would be moving to the other council area.
2. Ms X also complains the Council removed therapy provision from Y’s Education, Health and Care (EHC) Plan without carrying out an assessment of need.
3. As a result of the alleged fault Ms X says Y could not start college on time in September 2024.
4. Ms X wants the Council to put therapies back in place and pay ‘compensation’ for failing to arrange a smooth transition.

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The Ombudsman’s role and powers

5. 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)
6. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. 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(1), as amended)

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What I have and have not investigated

9. I have investigated whether the Council followed the correct process when arranging a change of education placement and transferring Y’s EHC Plan to a new council.
10. I have not investigated the removal of therapies from the EHC Plan. Ms X had a right of appeal to the Tribunal about the changes to the content of the EHC Plan, which she has used. The Ombudsman cannot investigate as this would overlap with the role of the Tribunal.

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How I considered this complaint

11. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
12. I have considered correspondence between this Council and the Council that Y moved into (‘the new council’).
13. Ms X and the Council had an opportunity to comment on my draft decision. I have considered comments I received.
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. 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.
16. 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) 
17. 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.
18. For young people moving between post-16 institutions, the council should normally complete the review process by 31 March where a young person is expected to transfer to a new institution in the new academic year.
19. There is a right of appeal to the Tribunal against:

• A decision not to carry out an EHC needs assessment or reassessment;
• The 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;
• An amendment to these elements of an EHC Plan;
• A decision not to amend an EHC Plan following a review or reassessment.

20. Regulation 15 (Special Educational Needs and Disability Regulations 2014) says where a young person with an EHC Plan moves from one council area to another, the ‘old’ authority must transfer the EHC Plan to the ‘new authority’ on the day of the move, or where it has not become aware of the move at least 15 days beforehand, within 15 days of when it did become aware.
21. From the date of transfer the EHC Plan is treated as though it has been made by the new authority and must be maintained by the new authority.
22. Within six weeks of the transfer the new authority must inform the parent or young person:
• That the EHC Plan has been transferred;
• Whether it intends to carry out an EHC needs assessment;
• Whether it intends to review the Plan. If it proposes to review the Plan this must happen within 12 months of the previous review or within 3 months of the date of transfer.
23. Where the new authority comes under a duty to arrange attendance at a school specified in the EHC plan but in the light of the young person’s move that attendance is no longer practicable, the new authority must arrange for the young person’s attendance at another school or other institution appropriate for them until such time as it is possible to amend the EHC plan

What happened

24. Y was attending School A and had a final EHC Plan dated Spring 2023.
25. School A held a review in early 2024. This was a ‘transfer review’ as it was planned Y would move to a new education placement in September 2024. There is also mention in the paperwork about Y potentially moving to a new placement to live.
26. The Council received the annual review paperwork from the school, and its decision was to amend.
27. The draft Plan was issued 3.5 months late. The Council has apologised for what it refers to as ‘an oversight’ in failing to send the draft within four weeks of the review meeting. It says the case officer changed and the new officer was unaware the draft Plan had not been issued until Summer 2024.
28. The new case officer also became aware of the plan for Y to move council areas. Y was moving into support living accommodation. The Council says the case officer found this out in late Spring. Ms X says this was all discussed at the review a few months earlier.
29. The Council says Y’s preferred education placement (College B) confirmed in a consultation response it could offer a place but wanted to hold a professionals meeting to understand Y’s needs better and said this could not happen until August.
30. The Council says it became aware in mid-July that Y had moved to supported living in the new council area. College B confirmed it would offer a place at around the same time. The Council issued the draft Plan on the same day it says it became aware of the move.
31. Ms X made a formal complaint about delay in issuing the final Plan in early August.
32. The Council told Ms X in the complaint correspondence it considered that as Y had moved to a new area it was for the new council to decide whether to agree the place at College B.
33. A month later the new council contacted the Council to ask for Y’s EHC Plan and file. The Council says it transferred the Plan to the new Council the next day, which was by then late August. The Council says it sent the draft Plan, that is the one sent with the amendment notice after the review meeting. It says the Plan could not be finalised until information was received from Health.
34. In September the Council reached out to the new council confirming Y had an offer of a place at College B.
35. In mid-September Ms X raised concerns with the Council that without a final EHC Plan Y could not start at college and queried removal of therapy provision in the draft.
36. A few days later there was a handover between the two councils and a meeting. The new council asked the Council to provide the formal offer from College B. The Council sent this six days later, a day after College B started back for the new term.
37. In early October the new council asked the Council for the current final EHC Plan as the Council had only provided it with a proposed amended draft.
38. Four days later the new council said it could not accept the transfer of the EHC Plan as no final EHC Plan had been provided, and it could not act on a proposed plan.
39. The Council then finalised the Plan immediately, and the new council confirmed it could now process this in mid-October. Y started at College B.
40. The Council has accepted delay in issuing the draft Plan but has not accepted fault in the transition arrangements.

Analysis

41. The annual review meeting was held in early 2024. The decision to amend and draft Plan should have been issued within four weeks. The Council issued the draft 3.5 months late. This was fault. The Council has acknowledged this delay and apologised but not offered any other remedy.
42. The final Plan was due within 12 weeks of the review meeting, by late Spring. It is not issued until October. This is fault.
43. As this was a planned transfer between post-16 institutions the Council should have ensured the review meeting was held in time to be able to issue a final EHC Plan by 31 March naming the next institution. This also means the Council should have consulted colleges before 31 March. This did not happen and is fault.
44. There was a change in caseworker, but this happened before the Council received the annual review paperwork from School A. While it is correct that one case officer attended the review meeting and a different one took over a few weeks later, only one officer dealt with the review paperwork after the meeting. It was incorrect for the Council to state in its complaint response the new officer only became aware the draft plan was outstanding in Summer 2024. This case officer was in place at the time the Council received the paperwork, and they were the person who had to make the decision whether to amend, maintain or cease the Plan. As the decision maker it was self-evident that a decision to amend required a proposed plan to be prepared and sent out.
45. Despite being allocated the case in early March, and the deadline of 31 March for post-16 transfer, the first substantive action by the new officer was not until late May, when they contact School A and found out about the planned move to the new council area. The Council says it was then a few more weeks before the officer identified annual review paperwork had not been processed.
46. The Council says it found out Y had moved areas in mid-July. This is also the day it says it issued the draft amended Plan.
47. Under Regulation 15 the Council had to send Y’s current final EHC Plan to the new Council on the day of the move if it knew in advance, or within 15 days of when it found out. It should have sent the final Plan to the new council in early August. As the Council had not yet issued a final amended EHC Plan after the review, it should have sent the final Plan dated Spring 2023 naming School A to comply with SEND Regulation 15. In practice it would also have informed the new council of the intention that Y should attend College B and shared the annual review paperwork and proposed amended plan.
48. On receipt of the 2023 final Plan, the new council would then have had to decide whether Y should continue to attend School A or identify a new institution. If it had received a final Plan in early August, it would have had time to secure Y’s college place before the new term began.
49. The new council asked for the paperwork in mid-August, and the Council sent it immediately, but this did not include the 2023 final EHC plan that was still legally in force.
50. There was a delay until early October before the new council advised it could not accept the transfer based on a draft plan. In response to this information the Council issued an amended final EHC Plan naming College B which allowed Y to start college in mid-October.
51. I acknowledge the Council did contact the new council for a handover and to share the offer from College B in mid-September, however this does not alter that it failed to comply with SEND Regulation 15 and did not correctly transfer a final Plan until October.
52. I would not criticise a council for leaving the decision about the next placement to the new authority in these circumstances, however this does not alter the Council could have issued a final Plan naming no placement or a type of placement; or simply sent the 2023 final Plan to the new authority to transfer responsibility.
53. In summary I find there was fault by the Council:
• In failing to issue a draft plan by the end of March.
• In failing to issue a final amended Plan by the end of May.
• In missing the transfer deadline of 31 March.
• In failing to transfer a final EHC Plan to the new authority correctly in July.
54. I find Ms X was put to unnecessary time, trouble and distress in sorting out Y’s education and that Y missed approximately three weeks of education at the start of term as the final Plan had not been updated to name College B on time.

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Action

Within four weeks of my final decision:

55. The Council will apologise to Ms X and Y for the faults identified in this decision statement.
56. The Council will make a symbolic payment to Y of £500 to acknowledge the impact of the delay including the loss of three weeks education in Autumn 2023.

Within two months of my final decision:

57. The Council will review its processes, including training and guidance provided to officers, to ensure:
• Phase transfer deadlines for updating EHC Plans are met.
• There are monitoring systems in place to track actions after an annual review are met.
• Consultations are carried out in sufficient time ahead of phase transfer deadlines.
• Officers are aware of the process to transfer an EHC Plan to a different council and that final EHC Plans are transferred within the statutory timeframes.
• The Council provide the Ombudsman with details of what actions it has taken or will take to prevent a recurrence of the fault.
58. The Council will provide us with evidence it has complied with the above actions.

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Investigator's decision on behalf of the Ombudsman