Summary: Miss Y complained about the way the Council dealt with Z’s special educational needs. She said it failed carry out annual reviews and a phase transfer review. It failed to provide a suitable placement for Z and appropriate support for his transfer to, and at the placement. We have found fault by the Council in failing to properly complete the phase transfer review and carry out annual reviews over a four-year period, causing injustice. The Council has agreed to remedy this by apologising to Miss Y and Z, making payments to acknowledge their lost opportunity to have their views and concerns considered, and reflect the uncertainty, worry and upset caused. The Council has also agreed to report back to us about the outcome of the recent annual review meeting and carry out service improvements.

The complaint

1. The complainant, who I am calling Miss Y, complains about the way the Council has dealt with her son, who I am calling Z’s special educational needs (SEN) provision. Miss Y says the Council failed to:

• carry out annual reviews of Z’s Education Health and Care (EHC) Plan between 2018 and 2022;
• complete a proper phase transfer review before he transferred to secondary school in 2019;
• provide him with a suitable secondary school placement; and
• provide him with appropriate SEN support for his transfer to secondary school.

2. Miss Y says Z’s secondary school placement was unsuitable for him. Because of the lack of support provided for his transition and at school, he was unable to continue attending the placement. As a result, the family had to withdraw Z from school and home educate him.
3. The Council’s failures have impacted Z’s education, and his and the family’s wellbeing.

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What I have and have not investigated

4. 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.
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. Where someone has appealed, we cannot investigate the matter under appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. I have not investigated Miss Y’s complaint about the suitability of the mainstream secondary school named in Z’s EHC Plan. This is because a concern about a named school is a matter for the SEND Tribunal. Miss Y was notified of her right to appeal against this when the Council issued its final amended plan naming the school as Z’s placement. I consider it was reasonable to expect Miss Y to appeal to the SEND Tribunal if she was unhappy about the school named.

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The Ombudsman’s role and powers

7. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
8. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
9. 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)
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

11. I spoke to Miss Y, made enquiries of the Council and read the information Miss Y and the Council provided about the complaint.
12. I invited Miss Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Education, Health and Care Plan (EHC Plan)

13. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and arrangements for meeting them.
14. Local authorities (councils) have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
15. We cannot direct councils to make changes to the special educational provision set out in the plan or to name a different school. Only the SEND Tribunal can do this.

Requesting a re-assessment

16. Councils must conduct a re-assessment of a child’s EHC Plan if a request is made by the child’s parent. (The Children and Families Act 2014 section 44 and the SEND Regulations 2014 Regulations 23-27)
17. A council may decide to refuse a request for re-assessment if it thinks a further EHC needs assessment is not necessary, for example because it considers the child’s needs have not changed significantly.
18. The council must notify the child’s parent of its decision as to whether or not it will undertake a re-assessment within 15 calendar days of receiving the request to re-assess. If it decides not to re-assess, it must notify the child’s parent of their right to appeal that decision and the time limit for doing so.

Annual Reviews

19. The special educational needs and disability code of practice (the Code) provides statutory guidance about the procedure councils should follow when reviewing an EHC Plan. The Code says a council must:

• review an EHC Plan at least every 12 months;
• within two weeks of the review meeting, prepare and send out a report setting out any amendments it proposes to make to the Plan;
• within four weeks of the review meeting, decide whether it will keep the Plan as it is, amend, or cease to maintain it. The council must notify the child’s parent of its decision;
• start the process of amendment without delay, if the Plan needs to be amended;
• send the draft Plan to the child’s parent and give them at least 15 days to give their views and make representations on the content; and
• when proposed changes to the draft Plan are agreed, amend the Plan and issue the final EHC plan as quickly as possible, and within eight weeks of the date the Council sent the proposed amendments to the parents.

20. Where the council does not agree the changes suggested by the child’s parent it may still proceed to issue the final EHC Plan.
21. In any case the council must notify the child’s parent of their right to appeal to the SEND Tribunal and the time limit for doing so.

Phase Transfer Reviews

22. The Code says an EHC Plan must be reviewed and amended in sufficient time prior to a child moving between key phases of education to allow for planning and, where necessary, commissioning of support and provision at the new placement
23. Where the child is due to transition from primary to secondary education, councils should review the EHC Plan and issue a final amended plan by 15 February at the latest before the transition in September.

Children with SEN educated at home

24. Parents have the right to educate children, including children with SEN, at home. (The Education Act 1996 section 7)
25. The Code says councils should work in partnership and support parents to ensure the SEN of these children are met where it already knows they have SEN.
26. Where a council and parents agree home education is the right provision for a child with an EHC Plan, the plan should state the child will be educated at home. The council must then arrange the special education provision set out in the plan. (Children and Families Act 2014 section 42(2))
27. Where the EHC Plan gives the name of a school or type of school for the child and the parents decide to educate at home:

• the council is not under a duty to make the special provision in the plan provided it is satisfied the arrangements made by the parents are suitable;
• the council must review the plan annually to assure itself the provision in the plan continues to be appropriate and the child’s SEN continue to be met; and
• where the council decides provision is appropriate, it should amend the plan to name the type of school which would be suitable, but state parents have made their own arrangements under Section 7 of the Education Act.

What happened

Background

28. I have set out a summary of the key events below. It is not meant to show everything that happened.
29. Z has an EHC Plan. The Council completed an annual review of his plan in May 2018. At the time of this review, Z was in year 5 and attending the mainstream primary school named in his plan.
30. In June 2018 Miss Y was asked by the Council to complete its form for children with EHC Plans transferring from primary to secondary school. She named a local mainstream secondary school (school A) as her preferred choice.

September 2018 to December 2018

31. In October, Miss Y told the Council she had decided to de-register Z from his mainstream primary school and educate him at home. She said it had not been an easy choice. He was being bullied and she had been unable to resolve this with the school. Z was so distressed by the bullying, he was now too anxious to attend school. Miss Y asked the Council to amend his plan to state Z would be home educated for the rest of year 6.
32. In November, the Council issued an amended final EHC Plan, naming Z’s mainstream primary school as his placement. The plan also stated the next annual review was due in May 2019.

January 2019

33. Miss Y sent an email to Z’s SEN case worker. She said:

• They had just had a meeting with the school A’s SEN Coordinator (SENCO) to discuss Z’s SEN support. The SENCO had told them she felt Z would not cope at school A. It was suggested they look at other schools, including special schools;
• This had thrown them. When they spoke to school A last year it told them Z’s SEN support would not be a problem; and
• They needed advice about the options for Z regarding schools.

34. A manager in the SEN team replied. He said he only needed to know their preference. All children had the legal right to go to a mainstream school. School A was their nearest school, and if they wanted to Z to go there, he would tell school A to give Z a place.
35. Miss Y contacted the SEN team again, following a visit by the Council’s Home Education (HE) officer. Miss Y said:

• They now felt school A was not suitable for Z. It had been suggested they look for schools better able to meet Z’s needs. School B had been mentioned as a possibility;
• The HE officer had asked about funding for Z’s Speech and Language Therapy (SALT) set out in his EHC Plan;
• Would they be able to have a personal budget to fund a tutor for Z;
• They needed advice about how to get Z assessed for dyslexia; and
• Z’s annual review should be carried out before May 2019 so that everything was in place for his transition to secondary school, including the support he needed.

36. Miss Y did not receive a response from the SEN team. She sent a further email chasing a reply, saying they really needed to know what was happening about Z's secondary school placement.

February 2019

37. Miss Y contacted the HE officer about the difficulty getting a response from the SEN team. Miss Y was concerned they had said Z could go to any mainstream school. That couldn’t happen because Z wouldn’t cope with this as the SEN team knew. She was worried Z would slip through the net.
38. On 6 February, the Council replied to Miss Y. It said:

• It had consulted with her choices of school A and school C. Both schools had said they were unable to meet Z’s needs. But as every child is entitled to a mainstream education, it had directed school A to admit Z in September 2019;
• It had sent a consultation letter to school B;
• Z’s SALT EHC Plan provision was provided by his primary school;
• As Z was home educated, it would not provide a personal budget for Maths, English and Reading tutoring;
• Miss Y should discuss any referral for a Dyslexia assessment with Z’s GP;
• There would be a discussion with school A’s SENCO about Z’s transition; and
• The SEN team would contact her to arrange the annual review meeting.

39. School B said in its reply to the Council’s consultation it would be unable to meet Z’s needs. He would require 1:1 support. And as he had been home educated since 2018 it felt it was unlikely Z would be able to reintegrate fully into a large mainstream secondary setting.
40. On 11 February, Miss Y told the SEN team they were not willing to accept a placement for Z at school A as it had advised them it could not meet Z’s needs. They asked the school to consult with school D.
41. On 12 February the Council issued Z’s final amended EHC Plan. This stated the Council agreed a mainstream school setting was suitable for Z but his parents had made their own arrangements for his education under Section 7 of the Education Act. As of September 2019, Z would attend school A.
42. The plan was sent to Miss Y with a letter explaining her right to appeal to the SEND Tribunal if she disagreed with its decision about the placement it had named for Z (school A).
43. Miss Y heard nothing further from the Council following the issue of the EHC Plan.

July 2019

44. I have not seen any evidence the Council contacted Miss Y about Z’s transition to secondary school between 12 February and July.
45. On 1 July Miss Y told the Council she had had another meeting with school A’s SENCO who had again said Z would not get any support at school and would not be able to cope. Miss Y was very concerned about this. She also asked about the annual review, which she had heard nothing further about.
46. In reply the Council said its Provision Evaluation Officer could visit school A if issues arose once Z had started there.

September 2019

47. On 14 September Miss Y told the Council they had decided to remove Z from school A and educate him at home. Z had wanted to go to secondary school and had started at school A, because although they had asked the Council for a different placement, nothing else had been offered. Z had been bullied when he started at school A and had become too anxious to continue to attend. They would now home educate him again.

Miss Y’s complaint to the Council

48. In May 2022 Miss Y made a formal complaint to the Council. She said:

• There had been no annual review of Z’s EHC Plan since 2018. She had asked the Council to arrange this, but not received any response; and
• She had told the Council in September 2019 about Z’s difficulties at school A. He had been unable to cope with the setting, had been bullied and could no longer attend after three weeks. She had not received any response from the Council.

49. In June 2022 Miss Y added a further complaint about a failure to include an appendix document with the plan.

The Council’s response to Miss Y’s complaint

50. In its complaint responses, the Council said:

• It apologised for the frustration caused by its poor communication and failure to carry out Z’s annual review. This was not the level of service expected from it. Officers are expected to respond to communication in a timely manner and within 3 working days. It had reminded the SEN team of the impact of poor communication on families;
• It would now organise the annual review;
• It would ensure they received the appendix document before the review: and
• The delay should not have happened. It acknowledged this was not acceptable and the impact of the delay in the family and the further unnecessary frustration.

51. And regarding Z’s transition to secondary school, the Council said:

• At the time of Z’s phase transfer, Miss Y had expressed a preference for Z to attend school A. The Council had consulted with school A who had expressed concerns. The Council had then consulted with other schools including school B and school D, who declined to offer a placement. The outcome of the phase transfer was that school A was named;
• School D had offered a visit in April 2019 but the family had decided the travelling distance might impact Z: and
• It apologised Z’s transition was not well managed or supported and led to decision to remove Z from school and home educate again.

Miss Y’s complaint to us

52. Miss Y was not satisfied with the Council’s response. She said:

• The Council’s apology was not enough to remedy all the upset, stress and frustration regarding Z’s education and the EHC Plan review, which had not been carried out for over four years;
• Had the SEN team done their job properly, Z would not have been set up to fail when he started at secondary school; and
• The SEN team failed to help get Z the right setting after being told mainstream school was not appropriate for him.

53. Miss Y brought her complaint to us in August 2022.

Annual review of Z’s EHC Plan

54. I understand an annual review meeting was held in September 2022.
55. Miss Y has told me that, as yet, she has still not been notified of the outcome of the review, and whether the Council proposes maintaining, amending or ceasing Z’s plan.

My findings – was there fault by the Council causing injustice?

Annual review

56. The Council has accepted there was a delay completing the review of Z’s EHC Plan.
57. The Code says a council must review an EHC Plan at least every 12 months. The last review of Z’s plan was completed in May 2018. When Miss Y made her formal complaint in May 2022, it was four years since the last review, way beyond the required timescale. This very significant delay was fault by the Council. I have considered the impact of the delay on Z and his family below.
58. I also note that an annual review has still not been completed. Although there was a review meeting in September, the review is not completed until the Council has notified Miss Y whether it will maintain, amend or cease the plan. My understanding is the Council has not yet confirmed its decision to Miss Y. It is now coming up to five years without the completion of an annual review.

Phase transfer review

59. As Z was due to transition from primary to secondary school in September 2019, the Council should have arranged a phase transfer review and issued a final amended plan by 15 February 2019 at the latest. As the Code says this was to allow sufficient time for planning and commissioning any support and provision needed at the new placement.
60. Although the Council issued an amended final plan on 12 February naming school A as Z’s placement from September 2019 (against Miss Y’s wishes), there was no review meeting, no advice from professionals involved with Z, nor any draft amended plan on which Miss Y’s views were invited. Based on the evidence seen, I do not consider there was any proper phase transfer review of Z’s plan before February 2019 and this was fault.

Impact of the failure to complete a phase transfer review

61. The Council knew:

• Miss Y had selected school A as her preferred secondary school placement early in 2018 when Z was still attending his mainstream primary school;
• Z’s situation had changed significantly. In October 2018 he had been unable to continue attending mainstream school because of his anxiety. He had been home educated since then; and
• Miss Y had made it clear home education was only an interim measure and they wanted Z to start secondary school in September 2019.

62. And Miss Y told the Council in January and early February 2019:

• School A could not meet Z’s needs and was not suitable for him;
• They needed advice about a suitable school placement for Z;
• Z’s annual review should completed so that everything was in place for his transition to secondary school including the support he needed; and
• Z wouldn’t cope in a mainstream school and she was concerned he would slip through the net.

63. Had the Council completed a phase transfer review within the required timescale any changes in Z’s needs, Miss Y’s concerns about the suitability of school A, and additional support with the transition should have been discussed and considered by the Council. Other more suitable options could have been properly explored. With proper consultation, planning and support Z’s transition to secondary school could have had a very different outcome.
64. But none of this happened. The Council did not respond to Miss Y’s concerns, and as she feared, the Council seems to have allowed Z to slip through the net. Miss Y lost the opportunity to have her views considered as part of the phase transfer review. Z lost the opportunity to have a properly planned and supported transition to secondary school.
65. In addition to the Miss Y’s time and trouble chasing the Council, I consider these failures caused both Miss Y and Z significant avoidable uncertainty, worry and upset.

Impact of the failure to complete annual reviews

66. Had the annual reviews taken place at least every 12 months, in accordance with the required timescales, the Council would have invited the appropriate professionals involved with Z to the review meetings, obtained updated advice and reports about Z’s SEN, and considered whether there should be a re-assessment of his needs.
67. Because the annual reviews did not take place, Miss Y and Z lost the opportunity to have their views about Z’s current needs, any changes in his needs, including Miss Y’s concern he should be assessed for dyslexia, and any questions about Z’s SEN provision discussed and considered.
68. And by failing to complete annual reviews, the Council failed to satisfy itself about Miss Y’s arrangements for the special provision in Z’s plan or assure itself the provision continued to be appropriate, and Z’s SEN continued to be met.
69. Also, and crucially, as part of the reviews, there would have been an informed consideration by the Council as to whether it was still appropriate to name mainstream secondary school as being suitable for Z. And if not, whether other options such as a special school placement, or Education Otherwise than at School (which could be funded by the Council and include Z’s SEN provision) should now be put in place. Miss Y lost the opportunity to have these important matters properly discussed and considered. And these opportunities have been lost year after year, for four years.
70. In addition to the Miss Y’s time and trouble chasing the Council, I consider the failure to carry out annual reviews in the period from 2018 to 2022 has caused both Miss Y and Z significant avoidable uncertainty, worry and upset.

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Agreed action

71. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:

• apologise to Miss Y and Z for its failure to complete a proper phase transfer review before Z started secondary school and its failure to carry out any annual reviews between 2018 and 2022;
• pay Miss Y £1,500 to acknowledge the opportunity she lost to have her views and concerns about Z’s SEN and a suitable placement considered in the phase transfer and annual reviews, and to reflect the significant upset and worry caused by the failure to complete these reviews and the time and trouble caused by the delays and communication failures over a four-year period. This figure is a symbolic amount based on the Ombudsman’s published Guidance on Remedies; and
• pay Miss Y £500, on Z’s behalf, as a symbolic amount, to acknowledge the opportunities he lost to have his views about his education considered and a planned and supported transition to secondary school, and to reflect the significant uncertainty, worry and upset this caused him. This payment is to be used for the benefit of Z’s education.
• Report back to us on the outcome of the annual review meeting held in September 2022, together records of any updated advice and information obtained about Z’s SEN and any changes in his needs. And confirmation as to its decision about Z’s plan following the review and the issue of any amended or final plan.

72. Within three months from the date of our final decision, the Council has agreed to review its procedures for ensuring:

• phase transfer reviews are completed within the required timescales and its SEN officers are aware of these timescales and their importance; and
• annual reviews are completed within the required timescales and its SEN officers are aware of these timescales and their importance.

73. The Council should provide us with evidence it has complied with the above actions.

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Final decision

74. I have found fault by the Council causing injustice. I have completed my investigation on the basis the Council will carry out the above actions as a suitable way of remedying the injustice.

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Investigator's decision on behalf of the Ombudsman