Summary: There was fault and delay in completing a transition review for post 16 education. This caused unnecessary uncertainty and distress; deprived Ms X’s child of a planned transition; and, caused inconvenience, time, trouble and lost income to Ms X. The Council has agreed to make payments to Ms X and her child to acknowledge the injustice caused. The complaint is upheld.

The complaint

1. Ms X complains about delay in the way the Council handled the review of her child’s Education, Health and Care (EHC) Plan, and transition from school to college. Ms X also complains about poor communication.
2. Ms X says because of the fault her child missed out on transition arrangements and the delay caused distress, uncertainty, inconvenience and lost income.

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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. 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)
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)

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How I considered this complaint

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

•      The Children and Families Act 2014

•      The Special Education and Disability Regulations 2014

•      The Special Educational Needs and Disability code of practice: 0 to 25 years.

8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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

10. 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.

11. 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.
12. 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.

13. 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.  

What happened

14. The Council maintains an EHC Plan for Ms X’s child. In Winter 2023/4 Ms X applied for a college course for her child for September 2024.
15. In February 2024, the school held a meeting to review the EHC Plan. The Council attended. Ms X says the college course was discussed and she emphasised she wanted to ensure adequate time for a transition period from school to college. Ms X says they had applied for the same college place the previous year but, due to delay by the Council, the college declined to offer a place with the reason given being a lack of transition time. Ms X was anxious this did not happen again.
16. The Council says the school provided it with suggested amendments to the EHC Plan three weeks after the review meeting.
17. In May 2024, Ms X chased the Council for an update. Two weeks later, having had no reply, Ms X tried to telephone the caseworker but was put on hold for 45 minutes and then cut-off. A subsequent call was also unsuccessful.
18. A week later Ms X rang again and managed to leave a message with the caseworker’s colleague. Ms X says the caseworker did not reply until she emailed stating she would make a formal complaint.
19. The Council then responded advising a consultation had only just been sent out to the proposed college.
20. Ms X continued to chase a response in June and July before making a formal complaint. In mid-July the Council said the college had responded it could not meet need as Ms X’s child required 2:1 provision. Ms X said this was inaccurate, was not stated in the EHC Plan, and she would not accept a decision made on incorrect facts. The Council said it would ask the college for a meeting and to review its decision. This did not happen, and Ms X continued to chase.
21. The Council provided a complaint response upholding the complaint and offering a symbolic payment of £300. Ms X told the Council she would accept the payment but remained unhappy as no placement had been secured.
22. The college said it would not reconsider a place without an accurate EHC Plan. A meeting was arranged between Ms X and the Council to update the EHC Plan, with a copy then sent to the college. After further chasing by Ms X, the Council said the college would not respond until after the summer holidays. Ms X said they felt they had no choice but for her child to remain at their previous school for another year.
23. Ms X complained to the Ombudsman at the end of the summer holidays.
24. The college did offer a place, but this happened only a day before term started in September. Ms X’s child did want to attend but found this a frightening prospect with no planning. Ms X says her child was determined to go rather than return to their previous school. Ms X says as a transition was needed her child started the course one week late.
25. Ms X is self-employed instructor. She had to delay her class term start date by a week, given the uncertainty whether any provision would be in place, and then to support her child with the transition into college. This included several days practising the route to college so her child could manage this independently.
26. Ms X has provided financial evidence of a loss of gross income of £987 for the week.
27. Ms X says the delay caused distress, made worse by the lack of communication, and her child found it very difficult over the summer not knowing where they would go in September.
28. The Council’s complaint response accepted fault and delay, poor communication and telephone difficulties. The Council told us Ms X accepted the financial remedy of £300 offered at the time.

What I have and have not investigated

29. I have investigated the Council’s handling of the 2024 review of the EHC Plan. I have not investigated events in 2023 when the transition between school and college previously failed. This complaint is late, and Ms X could have complained at the time.

Analysis

Fault

30. The Council failed to complete the annual review on time, this was fault.
31. The Council missed the statutory timescale for transition between education phases, this was fault, and it is particularly concerning that this was not the first time this had happened to Ms X’s child.
32. The Council should have issued the amended final EHC Plan to name the new placement by 31 March. The Council issued a draft plan in August, I have not seen evidence a final Plan was ever issued to complete the February 2024 review. Ms X says she believes an email copy was issued but she has never received a hard copy. The delay of over five months in confirming the post 16 setting was fault and caused unnecessary uncertainty.
33. The Council received suggested amendments to the Plan in March so it should have taken steps to ensure this was updated quickly so colleges would have access to accurate information when consulted. The failure to update the Plan after the review meeting meant a further meeting to amend the Plan had to be held at short notice so the college would reconsider.
34. Ms X told me she believes the right support was in place at college when her child started but one week of education was missed.
35. The Council has accepted delay in completing the review and consulting the college and accepted its communication was not of the standard Ms X could expect. It has apologised and offered a symbolic payment of £300.

Injustice

36. We issue Guidance on Remedies which sets out our approach to remedying injustice. When someone has suffered injustice that results from fault by a council, we aim to put the person back in the situation they would have been in had the fault not occurred. Where there is quantifiable financial loss, we may ask a council to refund reasonable expenses a complainant has incurred. Where it is not possible to put the person back in their previous situation, we may recommend a symbolic payment to acknowledge the impact of the fault.
37. Complainants may say they have suffered loss of earnings. We do not normally recommend remedies that reimburse loss of earnings as we cannot usually, on balance, establish a clear and causal link between the fault and claimed loss of earnings. Such payments are often best resolved via the courts. There will however be exceptions where a clear causal link can be established, and it would not be reasonable to expect someone to use a court process.
38. The Council’s fault caused distress and uncertainty over a prolonged period which resulted in a rushed decision needing to be made in September, which will have been particularly difficult given the nature of special educational needs Ms X’s child has. The fault also caused inconvenience and loss of income.
39. I am not persuaded a payment of £300 is a sufficient remedy for the level of distress caused to Ms X’s child and it does not put Ms X back in the situation she would have been in if the fault had not occurred. There is a clear causal link between the late securing of a college place and Ms X needing to delay her own term as a private instructor by one week, causing her loss of income, which she can evidence.

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Agreed action

Within four weeks of my final decision, the Council has agreed to:

40. Pay Ms X’s child £200 to acknowledge the distress and uncertainty and loss of a week’s education, this is in addition to the £300 payment already made by the Council.
41. Pay Ms X £740 to acknowledge the distress and inconvenience to her, and to acknowledge her net lost income.
42. The Council will check whether a final EHC Plan naming the current placement has been issued in line with statutory requirements.
43. I acknowledge the Council has already provided an apology and taken steps to improve its communication with Ms X since these events, as well as sought to resolve issues with staff vacancies and lack of management oversight to prevent a recurrence of the fault. I have not therefore recommended further service improvements.
44. The Council will provide us with evidence it has complied with the above actions.

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Final decision

45. I have completed my investigation. There was fault and delay in completing a transition review which meant a placement for post 16 was not confirmed until the last minute. This caused unnecessary uncertainty and distress; deprived Ms X’s child of a planned transition; and, caused inconvenience, time, trouble and lost income to Ms X. I am satisfied the agreed actions set out above are a suitable remedy for the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman