Summary: Mrs X complained of the Council’s handling of her child (Y’s) Education Health and Care (EHC) Plan during a phase transfer. This included poor communication and a failure to issue Y’s amended final EHC Plan by 15 February in line with statutory timescales. The Council was at fault for its communication and the three-month delay in issuing Y’s EHC Plan. This caused Mrs X distress, frustration and uncertainty and delayed her appeal rights to the SEND tribunal. The Council has agreed to make a payment to recognise this.

The complaint

1. Mrs X complained of the Council’s handling of her child (Y’s) Education Health and Care (EHC) Plan during a phase transfer. This included poor communication and a failure to issue Y’s amended final EHC Plan by 15 February in line with statutory timescales. This has caused Mrs X distress, frustration and uncertainty and delayed her appeal rights to the SEND tribunal.

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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. 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)
4. 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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How I considered this complaint

5. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
6. Mrs X and the Council had an opportunity to comment on a draft decision. I considered any comments before making a final decision.

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What I found

Relevant Law and Guidance

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 Tribunal or the council can do this. 
8. 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. This means that discussions about transfer need to begin early in the autumn term of the year before transfer (such as year 6 or 11) to allow plenty of time for the review and amendment process to happen.
9. 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.  

10. 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. The appeal can be against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan.

What happened

11. Mrs X has a child Y who has special education needs and an EHC Plan in place. Y was attending a school (A) which had a primary and a secondary site. Y was due to transition to the secondary site to start year seven in September 2024. However, Mrs X did not think this would be suitable so contacted the Council at the end of 2023 to advise this and ask about the process.
12. Mrs X says the Council told her there should have been a phase transfer meeting in September 2023. However, the Council did not offer this and she says the Council did not tell her of the 15 February cut off date to complete the annual review and amend the EHC Plan. The annual review meeting instead took place at the end of February 2024 and the Council issued Y’s amended final EHC Plan in mid-May 2024. The Council named School A as the school Y will be attending in September 2024.
13. In July 2024 Mrs X raised a stage one complaint which the Council responded to in September 2024. The Council upheld there had been poor communication in respect of the phase transfer and a delay in issuing the amended final EHC Plan. The Council apologised for this in the complaint response.
14. Mrs X escalated her complaint to stage two but this was primarily around the suitability of school A following the Council naming this in the amended EHC Plan. Mrs X has since successfully appealed this to the SEND tribunal and the school placement has changed. As Mrs X has used her right of appeal, we cannot investigate this part of the complaint further.
15. Mrs X remained dissatisfied with the Council’s handling of the matter and complained to us.

My findings

Poor communication

16. The Council has accepted it did not explain the phase transfer process or the deadline of when it should have issued Y’s amended Final EHC Plan by. The Council should have arranged a meeting in the autumn of 2023 to discuss this with Mrs X but it failed to do so. It also accepted Mrs X had to chase the Council multiple times for a reply to her queries. The Council’s poor communication with Mrs X was fault. This has caused Mrs X distress, frustration and uncertainty about the education Y would receive.

Annual review delay

17. The Special Educational Needs and Disability Regulations 2014 set out 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 15 February in the calendar year of the child’s transfer from primary to secondary school. The Council did not hold Y’s annual review meeting until the end of February 2024 and did not issue the amended final EHC Plan until the mid-May 2024. This was a delay of three months and fault. This caused Mrs X distress frustration and uncertainty about Y’s education and delayed her appeal rights to the SEND tribunal.

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Action

18. Within one month of the final decision the Council has agreed to take the following action:
1. Pay Mrs X £200 to recognise the distress, frustration and uncertainty caused by the Council’s poor communication and delay in issuing Y’s amended final EHC Plan.
2. Remind SEND officers to contact parents/carers the autumn term the year before the transfer to discuss the phase transfer process with them.
19. Within three months of the final decision the Council has agreed to take the following action:
1. Update its website to include information about phase transfers so parents/carers are informed about what this is, when it should be carried out and the relevant timescales.
20. The Council should provide us with evidence it has complied with the above actions.

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Decision

21. I completed this investigation. I found fault and the Council has agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman