The Ombudsman's final decision
Summary: Mrs X complained the Council failed to provide an appropriate transition to secondary school for her son, Child Y, and failed to provide special educational provision set out in his Education, Health and Care Plan. The Council was at fault and caused Mrs X distress, uncertainty and time and trouble. It meant Child Y did not receive the specialist provision he was entitled to. The Council will pay Mrs X £2,500 to remedy the faults identified.
The complaint
Mrs X complained the Council failed to provide an appropriate transition to secondary school for her son, Child Y. She said it also failed to provide special educational needs set out in his Education, Health and Care Plan between September and December 2023. Mrs X said as a result of the delays she was put to avoidable time and trouble contacting the Council and distress. She said Child Y missed out on a suitable transition and special educational provision to which he was entitled.
The Ombudsman’s role and powers
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) 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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
I considered: the information Mrs X provided and spoke to her about the complaint on the telephone; the information the Council provided; relevant law and guidance, as set out below; and our guidance on remedies, published on our website.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
What I found
Relevant law and guidance EHC Plans A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This document sets out the child or young person’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. Section I is the name and/or type of school/college. Section F sets out the special educational provision needed by the child or young person.
The special educational needs and disability code of practice: 0 to 25 years says a child’s parent has the right to request a particular school to be named in their EHC Plan. If the council names a school in an EHC Plan the school must admit the child. (SEN Code paragraph 9.78 and 9.83) Maintaining the EHC Plan 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).
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 its legal duty. At a minimum we expect it 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.
Key transfers pre-16 The council must review and amend an EHC Plan in enough time before a child or young person moved 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 this includes primary school to secondary school transition.
Council’s complaint process The Council has a two-stage complaint procedure.
Stage 1: The appropriate manager for the service complained about will investigate and respond to the complaint in 20 working days.
Stage 2: A senior manager who has not previously been involved with the complaint will carry out a full review and if necessary, further investigate the complaint. The Council will send a comprehensive reply within 20 working days.
If at either stage the Council will take more than 20 working days to investigate, it will let the complainant know, provide them with a progress report, and tell them when it believes it will provide its complaint response.
What happened Child Y lives with his family. Child Y has special educational needs and has an Education, Health and Care (EHC) Plan. Child Y attended a mainstream primary school, School 1. From September 2022 Child Y was in Year 6 at School 1.
In late January 2023 the Council consulted a mainstream secondary school, School 2, for Child Y to attend from September 2023. In mid-February 2023, School 2 responded to the Council consultation and said it could not meet Child Y’s needs and questioned the funding level for Child Y. The same day the Council issued Child Y’s final amended EHC Plan. It named School 1 and then School 2 from September 2023, as that was Mrs X’s parental preference.
Section F of Child Y’s final amended EHC Plan said he should have a carefully planned and supported transition into his secondary school, developed with School 1. It also said Child Y should have additional transition visits to the secondary school setting and be involved in the development of a personalised transition book with photos of key people and places to be looked at frequently. Section F of Child Y’s EHC Plan included 19 specific provisions.
In early May 2023 Mrs X contacted School 2 and the Council about Child Y’s transition because he was not included on School 2’s transition list. Between mid-May and late June 2023 Mrs X contacted the Council, School 1 and School 2, approximately 10 times about delay in considering Child Y’s transition to School 2. In this time the Council did consider the funding level queried by School 2 and asked School 1 and School 2 to communicate about Child Y’s transition. School 2 did not support Child Y’s transition because it said it could not meet his needs. The Council did not change its decision about naming School 2 in Child Y’s EHC Plan. Mrs X continued to receive conflicting information from the Council and School 2 on if Child Y would attend School 2.
In late June 2023 Mrs X made a formal complaint to the Council, she said Child Y had not received the provision set out in his final amended EHC Plan including the carefully planned transition to School 2. Mrs X said that was because there was disagreement between the Council and School 2 about whether he should attend there. Mrs X said all other pupils had transition arrangements in place to start next week and needed a prompt response. The same day School 2 said it would arrange Child Y’s transition.
In July 2023 Mrs X contacted the Council approximately 10 times by email and telephone to obtain an update and chase her stage 1 response.
In early August 2023 the Council responded to Mrs X’s complaint. It said Child Y was included in the transition day at School 2. It said the outstanding funding issue between the Council and School 2 would be resolved over the summer holiday break. It apologised to Mrs X for involving her in discussions over funding and the distress it caused.
Mrs X contacted the Council and School 2 approximately eight times in August 2023 explaining she was not happy with the stage 1 response and Child Y did not receive the additional transitional arrangements set out in his EHC Plan. She also asked the Council for assurance Child Y would receive the provision set out in his EHC Plan at School 2 from September 2023. In late August 2023 she escalated her complaint to stage 2.
In early September 2023 Child Y started to attend School 2.
Mrs X continued to contact the Council in early to mid-September 2023 about her complaint response and said it did not address her issues raised. She said the funding issue was not resolved between the Council and School 2 over the summer holidays and School 2 explained to Mrs X it could not provide 14 provisions set out in Child Y’s EHC Plan and would provide 5 provisions following further staff training. In mid-September 2023 Mrs X queried with the Council twice if her complaint had been escalated to stage 2. The Council said it would respond to her stage 2 complaint by late September 2023.
Mrs X continued to regularly contact and speak to the Council in September 2023 and October 2023 about Child Y’s missing provision. In mid-October 2023 the Council told Mrs X it would send her stage 2 response by late October 2023.
In late October 2023 and early November 2023 Mrs X contacted the Council several times for its stage 2 response she also contacted her local MP and the Ombudsman.
In early November 2023 the Council sent its stage 2 response to Mrs X. It said: it apologised for its delayed responses; it had been informed by School 2 it was not providing all the provision set out in Child Y’s EHC Plan; it was still working with School 2 to resolve the funding disagreement and looking at methods to secure Child Y’s provision; it asked Mrs X to attend a meeting to discuss the options open to Child Y; and gave our contact details.
Mrs X remained unhappy and had already complained to us. Mrs X continued to contact the Council in late November and mid-December 2023 about Child Y’s missing provision.
In mid-December 2023 the Council wrote to Mrs X and in late December 2023 it spoke to Mrs X on the telephone and said the funding dispute with School 2 had been resolved and Child Y’s provision would be put in place.
In early January 2024 the Council sent Mrs X a supplementary response to its stage 2 letter. It said although the funding dispute had been resolved it accepted between September 2023 and December 2023 Child Y had not received all the provision in his EHC Plan. It said in its stage 1 and stage 2 responses it had apologised for the poor transition arrangement in Summer 2023. It offered Mrs X a remedy payment of £1000 and a time and trouble and distress payment of £200.
My findings
Transition arrangements The Council was at fault for the poor transition arrangements in Summer 2023 when Child Y transitioned from School 1 to School 2. It did not put in place the enhanced transition arrangements set out in Child Y’s EHC Plan which meant Child Y lost the specialist educational provision he was entitled to.
Mrs X contacted the Council, School 1 and School 2 a considerable number of times to try and put in place the transition arrangements, which was the Council’s duty to arrange and was caught in the middle of a dispute between the Council and School 2. It caused Mrs X distress, uncertainty and time and trouble.
Lost provision The Council was aware in February 2023 that School 2 could not provide the provisions set out in Child Y’s EHC Plan unless funding was put in place. The funding should have been in place by the start of the academic year in 2023 but it was not. Between September and December 2023 Child Y did not receive all of the provision set out in section F of his EHC Plan. Child Y did not receive 14 of the 19 provisions for three months and received five of the provisions late due to the need for staff training. This was fault and meant Child Y did not receive all the provision he was entitled to for a term. It also caused Mrs X distress and time and trouble contacting the Council to put the provision in place.
Complaint responses Mrs X sent her stage 1 complaint to the Council in late June 2023 and then had to chase the Council for a response. The Council responded approximately 30 days later which was over the 20 working day timescale and did not inform Mrs X it would take longer than 20 working days to respond or give a timescale for the response. This was not in line with its complaint procedure and was fault. Mrs X tried to escalate her complaint to stage 2 in late August 2023 and twice again in September 2023. The Council gave Mrs X two different response dates which it did not respond by. It finally responded in early November 2023 which was over the 20 working day time scale and was not in line with its complaint procedure. This was fault and caused Mrs X distress and time and trouble contacting the Council and her local MP.
Council remedy The Council offered Mrs X £1000 to recognise the provision Child Y did not receive between September and December 2023 and £200 for the distress and time and trouble caused to her. It has already apologised to Mrs X for the poor transition in Summer 2023 and for the lost provision and delayed stage 1 and stage 2 responses.
Child Y was at an important stage of his schooling, he was transitioning to secondary school and needed an enhanced transition to ensure a successful start to his secondary career. He missed out on a term of specialist educational provision. Mrs X was put to a considerable amount of time contacting the Council and School 2 about her concerns and trying to arrange the provision for her child that the Council had a duty to provide.
Based on this information the Council’s remedy was insufficient to fully remedy the injustice caused. The Council has agreed to take the action below, which is in line with our guidance on remedies.
Agreed action
Within one month of the final decision the Council will: pay Mrs X £2000 for Child Y’s lost provision between September 2023 and December 2023 and the poor transition in Summer 2023; and pay Mrs X £500 for her distress, uncertainty and time and trouble contacting the Council about Child Y’s lost provision and chasing the Council for its stage 1 and stage 2 responses.
Final decision
I have completed my investigation finding fault, causing personal injustice. The Council has agreed to take action to remedy the injustice caused.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman