Summary: There was fault by the Council. It took too long to issue a final Education Health and Care Plan when Miss X’s son was moving from primary to secondary school. The Council also did not communicate with Miss X properly, and cannot show that it considered how her son could access his educational provision in the meantime. The Council’s shortcomings caused Miss X and her son distress and uncertainty at this crucial time. The Council has agreed to apologise to Miss X and make a symbolic payment in recognition of the impact on her and her son.

The complaint

1. Miss X complains that the Council failed to:
• Issue a final Education Health and Care (EHC) Plan in line with the legal time frame when her son, Z, was moving to Year 7 in September 2024; and
• Failed to make sure that Z received the section F provision set out in his Plan, nor sufficient alternative educational provision when he could not go to his mainstream primary school.
2. Miss X says that the Council’s failings caused her and her son distress, uncertainty and frustration. It meant that Z could not prepare for Year 7, including how he would travel to school by taxi.

Back to top

The Ombudsman’s role and powers

3. 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 recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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(1), as amended)

Back to top

What I have and have not investigated

5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. Miss X has taken more than 12 months to make these complaints to us. However, having spoken to Miss X and considered her situation very carefully, I have decided that she has good reason for not complaining to us sooner. Miss X was dealing with the educational and complex care needs of two children during this time and this made it unusually difficult for her to complain on time.
7. I have investigated the Council’s action from October 2023 to September 2024.

Back to top

How I considered this complaint

8. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
9. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
10. 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

What I found

The law and guidance

11. 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.

EHC Plan provision

12. 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 (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
13. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

EHC Plan reviews

14. 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. Following the review meeting the council must issue a decision to either amend, maintain or cease to maintain 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) 
15. 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.

Transfer between key stages

16. 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.

What happened

17. Miss X’s son, Z, has special educational needs. He has an EHC Plan which sets out his educational provision. The report of the annual review of Z’s Plan in 2022 says that he is attending an alternative outdoor provision part of the week, and his mainstream primary school for the rest of the week. The report says that the alternative provision is helping Z attend school.
18. The Council issued an EHC Plan in February 2023 naming Z’s mainstream primary school. The Plan said Z needs specific adult support in the classroom with particular emphasis on helping him with his increasing anxiety and risk of isolation, as well as sensory processing.
19. The Council held an annual review meeting of Z’s EHC Plan on 10 October 2023. Z was in his last year of primary school. This recorded that his Plan needed amendment. It sets out that Z continued to go to school and the alternative outdoor provision, but Z's outcomes had not been met as he is overwhelmed and finds it difficult to stay in the classroom, even with adult support. However across the alternative provision and the mainstream school, Z’s attendance was 95%.
20. At that time, Z was on the waiting list of two specialist schools but a place had not been found.
21. The Council should have issued the amended final EHC Plan by 2 January 2024. And in any case, as Z was due to move to secondary school in September 2024, the Council had to issue a final EHC Plan by 15 February 2024, so that he had time to prepare to move to a new school.
22. In early February, the Council told Miss X that its panel had decided that Z should go to a specialist school, and it would start consultations to find him a suitable place.
23. At the beginning of May 2024, the Council had not yet issued the EHC Plan, and a mainstream secondary school told Miss X it was holding a place for Z. This caused Miss X distress as Z needed specialist provision and was not coping with his mainstream primary school.
24. By mid-June, the Council told Miss X that the consultations had not been successful. Miss X asked the Council to consider independent schools. By mid-July, the mainstream school that was holding a place for Z confirmed that it could not meet his needs. The Council issued the draft EHC Plan.
25. The Council found a specialist school that could meet Z’s needs on 20 August and it issued the final EHC Plan naming this school on 21 August.
26. Miss X has described that the uncertainty was incredibly distressing for Z and that he had no time to prepare for his journey by taxi to a new school.
27. Miss X complained to the Council. It acknowledged that:
• it had taken too long to decide that Z should go to a special school following his annual review in October 2023.
• it took too long to issue Z’s amended final EHC Plan, and this should have been done by 15 February 2024 at the latest.
• It did not communicate with her effectively, provide her with updates when she requested these, and it caused distress when it did not explain that a mainstream space would be held for Z while it looked for a specialist place.
28. Miss X had complained that she had asked for the Council’s support with Z’s attendance. The Council said it had no record of its request. It said that it had recruited more staff and so communication would improve.
29. The Council has explained that Z’s annual reviews suggested that he was attending school. The school had arranged some alternative provision to support K using the funding already allocated to it. But the school had not told the Council that Z could not attend school, nor that it could not meet his needs there, nor that K was not receiving the provision set out in his EHC Plan.
30. Z left the mainstream primary school at the end of the school year in July 2024. The Council arranged for him to have alternative provision as at that point it was not clear that he would have a school place for September. It cancelled this provision when a specialist school place was found for Z.

Was there fault causing Z and Miss X injustice?

31. The Council took too long to issue the final EHC Plan. It should have been issued by 15 February 2024 ready for Z’s transfer to secondary school. Instead the Council issued the final Plan on 21 August. This was 27 weeks late.
32. The Council has also acknowledged that it did not communicate with Mrs X properly. Miss X is clear that the Council did not keep her updated about what would happen in the new school year, nor did it always respond to her contact about this. Miss X describes that there was no communication between the Council telling Miss X that it had decided Z should go to a special school in February 2024, and when it told her that it had not found a school in June 2024. This was an important transition for Z and the Council’s communication here was inadequate.
33. The delay by the Council caused Mrs X and Z distress and uncertainty that a school place would not be found in time, and delayed her right to appeal the final Plan. This was made worse when a mainstream school told Mrs X it was keeping a place for Z when the Council had already agreed that his needs could only be met by a specialist provision. The delay meant that Z had no time to prepare for his new taxi journey to the new school and this caused significant distress. It is clear from the annual review and what Miss X told the school and the Council, that Z was not coping in his mainstream primary. Miss X says the delays and poor communication and the uncertainty this caused, meant that it was harder for Z to settle into his new school.
34. Miss X also complains the Council did not support Z to attend his mainstream primary school and he was not getting his full EHC Plan provision while he was there. I have considered the annual review reports for 2022 and 2023, leading up to the Council deciding that Z should have specialist provision. These are clear that Z is attending school part of the week and an alternative provision for the rest of the week. The annual review in 2022 heard that this was working and allowed Z to manage at school. However, by October 2023 it is clear that Z is not managing in school and is not working towards his educational aims. The 2023 report says that Z is attending school but is spending a lot of time outside the classroom, overwhelmed and unable to learn.
35. Miss X says that she asked the Council for support around Z’s attendance, but the Council has no record of this. However, the 2023 annual review is clear he needed more support and suggests he was not able to access his full EHC Plan provision. The Council was on notice of this and decided that Z needed specialist provision. And so although Z was still attending school and he may not have joined that provision until September 2024, it is likely he was not receiving his full EHC Plan provision. The Council cannot show how it considered this and whether the alternative provision Z was receiving was sufficient to allow him to achieve the outcomes of his EHC Plan. Alongside the delay in the progressing the new EHC Plan, this adds to the distress and uncertainty caused to Miss X.

Back to top

Action

36. The Council will within one month of the date of this decision:
• Apologise to Miss X for the impact on her of its delay and poor communication. 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 I have recommended in my findings.
• Make a symbolic payment to Miss X of £500 in recognition of the significant distress and uncertainty the Council caused her and Z.
37. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

38. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Back to top

Investigator's decision on behalf of the Ombudsman