Summary: Mr X complained about the Council’s handling of his child, Y’s education since their Education, Health and Care (EHC) Plan annual review in September 2022. The Council was at fault. It delayed consulting with secondary schools for Y and delayed issuing Y’s amended EHC Plan. All this delayed Y’s transition to secondary school until 2024 which caused Y and Mr X distress, uncertainty and frustration and impacted on Y’s social development.

The complaint

1. Mr X complained about the Council’s handling of his child, Y’s education since an Education, Health and Care (EHC) Plan annual review in September 2022. He said the Council failed to consult secondary schools and delayed issuing an amended Plan.
2. Mr X said this caused a delay in Y transitioning to mainstream secondary school and meant he stayed at an independent primary school for longer than necessary.
3. Mr X said this impacted on Y’s social development, caused distress and meant he had to go to unnecessary time and trouble.

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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. 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)
6. 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 have and have not investigated

7. 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)
8. I have decided to investigate matters back to September 2022 when the Council held an annual review. This is because of much of injustice stems from the delays in the annual review process. I have also taken into account Mr X’s personal circumstances in not complaining to us earlier.

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How I considered this complaint

9. I spoke to Mr X about his complaint and considered information he provided.
10. I considered the Council’s response to my enquiry letter.
11. Mr X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

EHC Plans

12. 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.

Annual reviews

13. 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.
14. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (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 Courts have found councils must both notify the parent of the decision to amend, and what the proposed changes are within 4 weeks of the annual review meeting. The council must then issue any final amended plan within 8 weeks of the amendment notice. This means a final plan must be issued within 12 weeks of the review meeting.
16. There must always be an annual review of the EHC plan before a transfer to a new phase of education. This includes a transfer from primary school to secondary school. The regulations state the EHC Plan must be reviewed and amended by 15 February in the year the child is due to start secondary school.

SEND Tribunal and relevant caselaw

17. 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.
18. There is a right of appeal to the SEND Tribunal against the description of a child or young person’s SEN in their EHC Plan, the special educational provision specified, the school or placement or that no school or other placement is specified in the EHC Plan.

What happened

19. Mr X has a child, Y who was due to transition to secondary school in September 2022. They have special educational needs and an EHC Plan which sets out the specialist provision they are entitled to. Y attended an Independent Primary school (School 1) which was named as the placement in the Plan. A large part of the provision set out in Y’s EHC Plan was about meeting social and emotional needs and creating a therapeutic educational environment.
20. Due to Y’s needs and to give them an extra year to mature Mr X had requested Y be kept down a year to repeat year 6 and then begin at a mainstream secondary school in year seven in September 2023, a year behind their chronological age group. Mr X had always wished for Y to enter mainstream education if they continued developing and progressing well.
21. Y stayed at School 1 in for the 2022/23 academic year. School 1 held an annual review in September 2022 where Mr X reiterated his wishes for Y to start at secondary school in September 2023 in year seven, instead of year eight (which would have been their chronological age group). Mr X said a Council officer told him any decision to accept Y into year seven or year eight would be down to the school.
22. The Council decided to amend Y’s EHC Plan but records show that following the annual review, its communication with Mr X was poor. The Council told Mr X it needed a new Educational Psychologist (EP) report for Y to decide whether placing them out of their chronological age group was appropriate. It then told Mr X this was no longer necessary. It also delayed consulting with secondary schools for Y and updating Mr X on any responses. Despite Mr X chasing the Council on many occasions between February and June 2023 he did not receive any significant response from Y’s caseworker. By June 2023 Mr X had not received any updates or significant information about Y’s case and the Council had not issued the amended Plan.
23. Mr X complained to the Council in June 2023. He complained about the poor communication, lack of consultation responses and was concerned that Y did not have a secondary school plan for September 2023. Mr X said despite Y’s annual review being held in September 2022 they did not have an amended Plan or a named placement.
24. The Council responded to Mr X’s complaint in July 2023. It apologised for the caseworker’s poor communications and lack of updates around consultations and the annual review process. It said the caseworker had failed to send out some of consultations but was now doing so. The Council said it had not yet found a suitable mainstream secondary school for Y. The Council said it had in fact issued Y’s amended EHC Plan in April 2023 naming Y’s current school, School 1 as the named placement. However, it could see it had failed to send it out to Mr X for which it apologised.
25. Y remained at School 1 in September 2023.
26. Mr X was unhappy with the response and asked the Council to progress his complaint to stage 2.
27. The Council responded to Mr X in September 2023 and reiterated its apology for the poor communication around the school consultations. It said consultations would be completed by the end of October 2023 and overseen by a manager. The Council also apologised for the confusion around requesting an EP report for Y. The Council accepted the issue around whether Y could transfer into year seven or year eight (their chronological year) was not clear. The Council outlined actions it had identified were needed which included:
• carrying out a new EP assessment to ensure Y’s EHC Plan was up to date ready for new consultations with mainstream secondary schools;
• emailing Mr X on a weekly basis to check in and about him on progress;
• allocating Mr X a new case worker;
• reviewing its policy regarding placement consultations; and
• publishing a new over age transfer policy by December 2023.
28. Mr X escalated his complaint to stage 3 of the Council’s complaints procedure. He said there were continued delays in being provided with consultation responses and this was delaying Y’s transition into secondary education. He raised concerns that the Council was not chasing schools to respond or challenging them about the reasons for declining to admit Y.
29. The Council issued a stage 3 response in December 2023. It was disappointed that communication continued to be poor, despite a change in caseworker which it acknowledged was affecting Y’s transition to secondary school. It said it recently met with Mr X and the caseworker had agreed to contact a school (School 2) which it was hopeful Y would transition to January 2024.
30. The Council directed School 2 to accept Y into year seven in January 2024. However, records show School 2 had raised concerns about this and only offered Y a place into year eight, their chronological year. School 2 raised a complaint with the Secretary of State for Education against the Council’s decision to direct it to accept Y into year seven. This complaint was upheld and Y started at School 2 after Easter in year eight. Records show the transition was positive and Y has settled well.
31. Mr X remained unhappy about the Council’s handling of matters and complained to us.

The Council’s response to us

32. The Council said it accepted shortcomings in the consultation process and also gaps in how it communicated with Mr X. It said the delays following the September 2022 annual review were down to staffing capacity and a backlog in processing paperwork. The Council outlined steps it had taken to prevent recurrence of the issues experienced by Mr X. This included:
• a streamlined annual review process to ensure amended Plans are issued within timescales;
• recruitment of additional staff;
• a new case management system which it intends to extend to an online portal environment to allow parents/carers access. This will include adding consultation response letters for parents/carers to view;
• improvements to the consultation process which requires schools to provide detailed responses where they decide not to admit a child;

My findings

33. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales.
34. Y’s phase transition annual review took place in September 2022 and this means the Council should have issued an amended Plan by January 2023 or at least by mid-February 2023 to meet the deadline set out in law and the Code. It did not complete the amended Plan until April 2023 and then further failed to send it to Mr X until July 2023. All of these delays were fault.
35. As part of the annual review process the Council should have consulted with mainstream secondary schools after the annual review towards the end of 2022. The Council has accepted shortcomings in the consultation process which included both delaying sending consults to potential schools for Y and communicating with Mr Y. These delays, on balance, contributed to Y not having a secondary school place for September 2023 and having to remain at School 1 in year six. The Council’s handling of the phase transition consultations and its communication on the matter were both fault.
36. The Council carried out further consultations towards the end of 2023 and found Y a place at School 2 ready for January 2024. Mr X wanted Y to start in year seven however, School 2 raised a complaint against this to the Secretary of State for Education. This complaint delayed Y beginning at School 2 until after Easter 2024. While the initial consultation delays contributed to the delay in Y being offered a place at School 2, I cannot hold the Council at fault for the period January to April 2024.

Injustice

37. The faults identified above have all contributed to the delay in Y transitioning to secondary school. Had the Council carried out the annual review process in a timely manner, consulted schools without delay earlier in 2023 and properly communicated with Mr X it is likely, on balance that Y would have started at secondary school in September 2023. Earlier consultation may also have led to Y being able to start secondary school in year seven, a year below their chronological age, in line with Mr X’s wishes. While Y continued to be educated at all times, it is their social development which impacted them the most. The faults have caused Y distress and uncertainty as well as affecting their social development.
38. The matter has also had a significant impact on Mr X. Mr X was caused frustration having to continuously chase the Council for updates and information about the annual review process and the consultations. The uncertainty about Y’s future at secondary school caused Mr X distress and upset.
39. It is positive to note the Council has already put some improvements in place to prevent similar fault in the future. It should however provide us with an update on these actions and I have made a recommendation for it to do so below.

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Agreed action

40. Within one month of the final decision the Council agreed to take the following action:
1. Pay Mr X £1500 to acknowledge the distress, uncertainty Y felt and the impact on Y’s education and social development caused by the delay in the annual review process and in consulting with secondary school places, which delayed his transition to secondary school.
2. Pay Mr X £300 to acknowledge the distress, uncertainty and time and trouble caused to him by the faults outlined in this statement.
41. Within three months of the final decision the Council should provide the Ombudsman with an update on its actions to improve its SEND service, including:
• recruitment of SEND staff;
• the implementation of the new case management system;
• timescales for introducing a portal environment for casework; and
• what improvements it has implemented to improve its consultation process with schools.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I completed this investigation. I found fault and the Council 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