Summary: Ms C complains the Council has not completed a phase transfer annual review for her daughter, Y, a year after it was due. She says because of this delay Y has been out of education and the Council has not arranged alternative education provision. The Council was at fault for delay in completing an annual review and for not putting in place alternative education provision.

The complaint

1. The complainant, who I refer to as Ms C, complains the Council has not completed a phase transfer annual review for her daughter. She says the Council should have completed the review in February 2022 but in February 2023 has not yet completed this. Ms C says that because of this delay the Council has not identified a suitable primary school for Y, who remains out of education. Ms C says the Council has not arrange any alternative education provision for Y.

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The Ombudsman’s role and powers

2. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. 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

5. I considered the information Ms C provided and spoke to her about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Ms C and the Council for their comments before making a final decision.

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What I found

Law and Guidance

6. A child with special educational needs may have an Education, Health and Care (“EHC”) plan. This sets out the child’s needs and what arrangements should be made to meet them.
7. An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for 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 of the transfer at the latest for transfers into or between schools. The key transfers are:
• early years provider to school 
• infant school to junior school 
• primary school to middle school 
• primary school to secondary school, and 
• middle school to secondary school 
8. Most children start school full-time in the September after their fourth birthday. If a parent does not believe their child is ready to start school at this time they can defer entry. Their child must start full-time education once they reach compulsory school age. This is on 31 December, 31 March or 31 August following their fifth birthday, whichever comes first.
9. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
10. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

Background

11. Y has diagnoses of rare chromosome disorder, autism spectrum disorder, sensory processing issues and selective mutism. The Council put in place an EHC plan for Y while she was at nursery.
12. Y was eligible for full time education from September 2021. Ms C deferred entry to school that year. Based on compulsory school age, Y should have started full-time education in the term starting April 2022.
13. Ms C appealed the contents of the EHC plan, and a tribunal hearing was held in January 2022. The tribunal ordered amendments to the EHC plan, which included naming a nursery as the educational setting. It also reminded the Council that a transition period was coming up for Y and recommended a multidisciplinary team was involved in a detailed review of her progress to ensure the provision remained relevant and the correct educational setting was identified as Y entered Reception at primary school.
14. A phase transfer annual review was due to be completed by 15 February 2022. However, no annual review took place.
15. In April 2022 the Council issued an amended EHC plan based on the tribunal findings. The EHC plan named the nursery setting.
16. Ms C repeatedly chased the Council and raised concerns that no phase transfer annual review had taken place and Y did not have a school placement. In August 2022 the Council said it would arrange for a review to take place as soon as possible and passed the case to its review team.
17. An EHC coordinator from the review team got in contact with Ms C and suggested a review meeting date in early September 2022. She asked what Ms C’s preference was in terms of educational setting. Ms C said that Y would not be able to attend a school and would need Education Otherwise Than At School (“EOTAS”). Further contact took place between the EHC coordinator and Ms Y. However, no annual review happened.
18. In September 2022 the EHC coordinator made a referral to a tutoring service. The service said it did not have availability for Y as it only worked with children who had an EOTAS package in place. The EHC coordinator informed Ms C and said she would pass the case from the reviews team to the provision team as it was the provision team who could arrange for an EOTAS package. They also sent consultations to three primary schools in late September 2022.
19. The Council does not have records of any further attempts to secure tutoring for Y. No annual review took place, and no decision was made on an educational placement for Y. The Council says it expects to complete an annual review in February 2023.

Findings

20. I find fault on the following issues:
• The Council has not completed a phased annual review a year after it was due
• The Council has not ensured Y received education provision since April 2022
21. The Council should have completed a phase transfer annual review for Y before 15 February 2022. The tribunal order in January 2022 reminded the Council this needed to happen. However, the Council did not take any steps to arrange a review until August 2022. It then did not follow through with arranging the review until February 2023.
22. The starting point for naming a suitable educational setting, or package of EOTAS would have been the annual review. The failure to carry out a review means Y has not received any education between the start of April 2022 and then end February 2023. A total of 8 months of education, when excluding school holidays.
23. The Council started to take steps to arrange the annual review in August 2022, which was already several months over time. However, it did not follow through with this. It appears that part of the reason was that it passed the case from its review team to the provision team, with the intention of getting an EOTAS set up. However, no EOTAS package was arranged, and in any event, it should not have been a case of one or the other.
24. Alternative provision should have been a temporary measure, during the period that no formal educational placement was arranged and available to Y. To arrange a formal educational placement, whether that be in a school or through EOTAS, the Council needed to complete the annual review. Therefore, in August 2022, the Council needed to both arrange alternative provision and an annual review without further delay. It did neither.
25. The Council has now arranged to carry out an annual review at the end of February 2023. But at this stage, Y remains out of education.
26. I recommend the Council ensure the annual review takes place as planned, without any further delay. Although this is due to happen shortly, it will still take several weeks for the Council to make amendments to the plan, share them with Ms C, consider her comments and finalise a plan for Y’s education going forward. It is also possible there will be disagreement and potentially an appeal. During that time Y is likely to remain without a permanent named education setting, and the Council has a duty to arrange alternative education provision.
27. I therefore recommend the Council, without further delay, arrange for Y to receive a package of alternative education provision, such as home tutoring.
28. The fact Y has not received any education whatsoever puts this case at the higher range of what we would normally recommend as a payment to recognise loss of provision. I recommend the Council pay Ms C £500 for each month of lost education, which totals £4,000. The Council should also pay Ms C a further £500 for every month after the date of this decision that Y does not have a package of education in place.
29. I have not made stipulations that Ms C should use the money for extra education for Y. This is because, the main thing is to get Y into the full-time education she should be receiving. It is not clear Y would be able to manage additional education on top of that full-time, as a way of catching up. However, Ms B has indicated that she will put the money towards additional educational activities, as and when possible, outside of term time, and as savings towards any further education Y might need in the future.
30. I also find the delays and lack of provision caused significant distress to Ms C, and time and trouble chasing the Council and bringing complaints. I recommend the Council pay Ms C £250 to recognise the distress and time and trouble caused.
31. I have also considered whether to make service improvements recommendations. We have recently made several recommendations to the Council on similar cases. The recommendations include:
• Remind officers of statutory duties and timescales for completing annual reviews and provide officers with relevant training
• Establish monitoring of its SEN team when handling EHC plan reviews, school consultations and arranging alternative education provision
• Improve how it monitors schools completing EHC plan reviews
• Establish a mechanism to ensure suitable alternative provision is promptly identified and put into place
32. Those recommendations are all relevant to this case and I would be repeating what we have already recommended. The recommendations were all made between June and December 2022, with compliance dates of between September 2022 and March 2023. The Council has also made changes to the structure of its teams in an effort to improve its services. Therefore, I have not included new or changed recommendations for service improvements. However, this case does represent a repetition of the fault with have found in several other cases and Council must continue to implement the recommended actions to ensure it complies with its statutory duties going forward.

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Agreed action

33. The Council has agreed to, within a month of this decision:
• Apologise to Ms C for the delay in completing a phase transfer annual review and for not arranging alternative education provision
• Pay Ms C £4,000 in respect of eight months’ lost education
• Without further delay arrange a package of alternative education provision for Y
• Pay Ms C a further £500 for every month Y remains without an offer of suitable alternative education provision
• Pay Ms C £250 to recognise the distress and time and trouble caused
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. The Council is at fault for the delay in completing a phase transfer annual review and for not arranging alternative education provision.

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Investigator's decision on behalf of the Ombudsman