Summary: There was a delay of almost six months in completing a post-16 transfer review and amendment of an Education, Health and Care Plan. This meant there was inadequate transition and the right to appeal the placement before the start of the school year was lost. The Council will apologise, make a symbolic payment and carry out service improvements. The complaint is upheld.

The complaint

1. Ms X complains the Council delayed completing a post-16 phase transfer review of her child’s Education, Health and Care (EHC) Plan and missed the statutory deadline for naming the next placement. This caused frustration and uncertainty. There was no transition planning, and her right of appeal was delayed.
2. Ms X also told me there with problems with the setting the Council eventually named in an amended final EHC Plan so her child has been unable to access post-16 education.

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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 suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
6. 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)
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 SEND 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(i), as amended)

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How I considered this complaint

9. I have considered information provided by Ms X and the Council.
10. I have considered relevant law and statutory guidance including:

• The Children and Families Act 2014 (‘The Act’)

• The Special Education and Disability Regulations 2014 (‘The Regulations’)

• The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)

11. I have spoken to Ms X by telephone and considered the Council’s response to my enquiries.
12. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
13. 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

14. 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 council can do this.

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. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.

16. Two weeks after the review meeting a written report must be prepared and circulated setting out recommendations, often this report is prepared by the school.

17. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.  

18. 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) 
19. 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.

20. The final EHC Plan must be issued as soon as practicable and within a further eight weeks of amendment notice. Councils must send the final EHC Plan within a maximum of twelve weeks of the annual review meeting.

21. There is a right of appeal to the Tribunal against:

• 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;
• an amendment to these elements of an EHC Plan.

What happened

22. A review of Ms X’s child’s EHC plan took place in late 2023. The meeting was held by the school Ms X’s child was attending. The report subsequently prepared by the school recommended a change of placement post-16 for A level. Ms X had identified her preferred setting and a representative from this setting attended the review meeting.
23. The Council received the review report from the school one week late, in early 2024.
24. The Council should have decided by mid-January whether to amend the Plan. It did not do so until early March.
25. Ms X complained about delay in March and said that the delay would affect her ability to appeal before the new school year. The Council acknowledged there had been delay and said it would send a draft Plan shortly.
26. Ms X asked for her complaint to go to stage two. The Council provided a response stating it would not carry out a stage two investigation as it could not add to the explanation it had given except to say it was taking measures to improve timescales. The letter referred to delays in new assessments, not to progressing annual reviews and dealing with phase transfers.
27. The Council issued an amended draft Plan in May, four months late. Ms X provided her comments on the draft promptly. The Council issued an amended final Plan at the end of August naming a placement to start in September.
28. Ms X says there are problems with attending the named placement. The Council made further enquiries to Ms X’s preferred placement after the start of term, but this school said as the Council did not take up the offer of a place, or agree fees, the place has been offered elsewhere. Ms X says the Council should have taken the costs to panel for her choice of school much earlier as it was now full.
29. In response to my enquiries the Council accepted there had been significant delay in completing the annual review and issuing an amended final Plan. It said this was due to shortage of staff. The Council says it has reconfigured its staff and now has an assigned team dedicated to children in Year 10 / approaching post-16 transfer to address this issue.

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What I have and have not investigated

30. I have investigated the delay in completing the phase transfer review and missing the statutory deadline for when a post-16 placement must be named.
31. I have not investigated the content of the amended final EHC Plan, or the choice of placement. Ms X had a right of appeal the content of the Plan, including the placement named, which I consider it was reasonable for her to use (Local Government Act 1974, section 26(6)(a), as amended).
32. I am also not satisfied the Council has had an opportunity to consider Ms X’s concerns about events that happened after the Council’s final complaint response in April, including how it decided between the two placements (Local Government Act 1974, section 26(5)). This issue did not feature in Ms X’s original complaint to the Council.
33. Ms X will need to appeal the final EHC Plan if she disagrees with the placement, and / or make a new complaint about how the Council decided to name this placement, or about any loss of provision due to problems attending this placement. The Council must be given an opportunity to consider these matters before the Ombudsman could do so.

Analysis

34. There was delay at all stages of completing the annual review and amending the EHC Plan. This was fault. The review and final Plan should have been completed within twelve weeks, by early March. The phase transfer deadline of 31 March was also missed. The overall delay was nearly six months. This prevented any transition planning and delayed Ms X’s right of appeal. The purpose of the 31 March deadline is so appeals can be heard before the new school year; this opportunity was missed.
35. The Council provided a ‘stock’ complaint response letter at stage two which referred to delays in new assessments and implied as there was a systemic issue in relation to new assessments that further investigation at stage two would not add to the explanation of delay provided. Ms X’s complaint was not about a new assessment but about an existing EHC Plan. The stage two complaint response was therefore inaccurate. This was fault. The stage two also did not identify the continued delay that occurred after the stage one response or consider if a further remedy was appropriate. Had it done so this may have resolved the complaint upstream.
36. As a result of the faults identified Ms X and her child have been put to unnecessary uncertainty, distress, and inconvenience. Their loss of appeal rights at a key transfer stage is also an injustice.
37. For the reasons given above I have not considered any loss of education since September 2024 as this matter would first need to be put to the Council via its own complaint process.

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Agreed action

38. I acknowledge the Council has reorganised staff so it now has a dedicated team for this age group which should help prevent a recurrence of the fault.
39. Within four weeks of my final decision:
• The Council will apologise to Ms X for the fault identified in this decision statement.
• The Council will pay Ms X £750 to acknowledge the distress, uncertainty, lost appeal right, and time and trouble caused.
• The Council will advise complaint officers to provide realistic timescales for when agreed actions will be completed and ensure families are kept informed if there is further delay.
• The Council will advise complaint officers that while use of standard wording can aid efficiency, this is only the case if the officer has properly considered and understood the complaint and provided an accurate response to the facts of the case.
40. The Council will provide us with evidence it has complied with the above actions.

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Final decision

41. I have completed my investigation. There was a delay of almost six months in completing a post-16 transfer review and amendment of the EHC Plan. This meant there was inadequate transition and the right to appeal the placement before the start of the school year was lost. I am satisfied the agreed actions set out above are a satisfactory outcome for the fault and injustice. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman