Summary: Ms C complains the Council did not carry out a review of her son’s Education, Health and Care Plan before his move to secondary school. It also further delayed issuing a Plan, did not attend a meeting about their appeal and was poor in its communications. We uphold the complaint because of poor communications by the Council, including not attending meetings. The Council has agreed to our recommendations to remedy the injustice to Ms C and her family.

The complaint

1. The complainant (Ms C) complains the Council:
• failed to advise her son’s (X) primary school that it needed to carry out a phase transfer review of his Education, Health and Care (EHC) Plan to allow the family to be fully involved in deciding a school before the statutory deadline;
• delayed issuing a final EHC Plan to the school X was due to attend;
• did not attend a tribunal hearing; so missing the chance to curtail the length of the injustice;
• was poor in its communications, including failing to tell Ms C of a placement offer.
2. Ms C says the repeated faults caused immense stress, ill-health and anxiety for the family. It cost them time and energy.

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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 recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
6. The law also 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 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(1), as amended)
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 have and have not investigated

10. I have not investigated the placements the Council offered, for the reasons set out in paragraphs 5-7. Ms C appealed (or had a right of appeal) those decisions.

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How I considered this complaint

11. I considered evidence provided by Ms C and the Council as well as relevant law, policy and guidance.
12. Ms C and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legal and administrative background

13. A child or young person with special educational needs may have an 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 the council can do this. 
14. 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.
15. When a child is within 12 months of moving between a phase of education (including primary school to secondary school), the council must review and amend an EHC Plan. It must do it in enough time before a child or young person moves 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. (Regulation 18 Special Educational Needs and Disability Regulations 2014)
16. A review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. (Regulations 19 and 20 Special Educational Needs and Disability Regulations 2014)

What happened

17. This section sets out the key events in this case and is not meant to be a detailed chronology.

Background

18. X was born in 2013 and has had an EHC Plan since June 2023.
19. In March 2024 the Council held a review of X’s EHC Plan. This review was triggered because Ms C was moving home and this meant X needed to move (primary) school. He began at a new school in June.
20. An earlier decision by the Ombudsman found the Council failed to ensure X was receiving the provision set out in his EHC Plan after he moved to the new school.

Events I have investigated

21. Ms C says in August 2024 she received a generic email from the Council’s duty case officer stating she needed (by mid-September) to advise of her school preference for X’s 2025 key stage transfer.
22. Before the Council’s deadline, Ms C advised it of her choice of secondary school for X (School 1).
23. A few days later Ms C says she contacted the Council’s contact centre, as she had not heard from X’s case officer. It advised X had a new case officer, who Ms C then contacted.
24. The Council says:
• the version of X’s EHC Plan it used for its consultation for his key stage transfer was the one it completed after the March review; and
• School 1 advised it could not meet X’s needs.
25. On 11 February 2025 (see paragraph 15) the Council sent Ms C a revised EHC Plan, including X’s new school placement – naming a local school (School 2). Ms C says she had asked the Council in December 2024 to stop consultations with School 2, but had had no communications from it about this, or anything else about the phase transfer review. Ms C appealed the Council’s decision.
26. At the end of March, the primary school hosted a review of X’s EHC Plan. Ms C says the school arranged this in response to her complaints to it about its failure to provide X with the contents of his EHC Plan (see paragraph 20). The Council’s case officer did not attend. The Council says this was because of “unprecedented staff shortages”.
27. In May, as part of the appeal process, Ms C attended an alternative dispute resolution meeting. The Council’s officer did not attend, and the Council provided no explanation to the Tribunal for its non-attendance. After the meeting the Tribunal’s Judge issued an Order. This noted that School 1 had said it could not meet X’s needs due to the contents of his EHC Plan. So the Judge ordered the contents of the Plan become part of the appeal.
28. There was some delay following up on the Order, as the Council’s officer delayed finding an email. Following a further meeting in June, in July the Council contacted a different school (School 3). That school wanted parts of the contents of X’s EHC Plan changed. Ms C agreed to these changes, so the Council changed X’s Plan and named School 3 in it.
29. Ms C complained about how the Council had dealt with its review of X’s EHC Plan, including naming a new school. Its complaint responses partly upheld the complaint because its officer was unable to attend the alternative dispute resolution meeting and due to problems caused by its turnover of case officers.
30. Ms C was not satisfied with the Council’s complaint responses, so she complained to the Ombudsman. In response to my enquiries, the Council advised:
• it had a system to track when EHC Plan annual reviews were due;
• its view was it had followed the key stage transfer process.
31. Ms C says X is now at School 3 and doing ok. She says when he started there the Council had not sent the school a copy of his EHC Plan.

Was there fault by the Council?

32. The Council says it used the EHC Plan completed in March 2024 for X’s key stage transfer for September 2025. And that in doing this it followed the key stage transfer process. Looking at what the Special Educational Needs and Disability Regulations say, I do not agree because:
• Regulation 18 says a council must review a Plan in the 12 months before a key stage transfer; and
• Regulations 19 and 20 say the review must consult with parents, the school, professionals and consider the child’s progress.
33. The Regulations do not make any distinction between annual reviews and key stage transfer reviews. So key stage transfer reviews, as with all reviews, must include a review meeting to consider the proposed amendments. And parents must be given information and time to prepare for meetings so they can take part in decision making about their support. The evidence shows the Council did not hold a phase transfer review within 12 months of X’s move to secondary school. Nor did it support Ms C to explore options until after the key stage transfer naming date. That was fault.
34. The Council did not ensure the primary school was aware of the EHC Plan review deadlines – evidenced by the school not holding an annual review in the appropriate time and then holding an annual review soon after the Council had issued a key stage transfer revised EHC Plan (by the time of the review Ms C had appealed the February EHC Plan).
35. There is also evidence of missed communication that amounts to fault. At a minimum, the Council should have responded to contacts from Ms C, advised her about changes in X’s caseworker and attended meetings. The Council cites staff turnover. I accept the pressure the Council is under due to increased EHC workload. So I make a finding of fault by way of service failure for this part of the complaint (see paragraphs 3 and 4).

Did the fault cause an injustice?

36. By not holding the review, including consultation and a meeting, Ms C did not get an opportunity to sit down with the primary school or Council to discuss formally X’s needs, future provision and view about an appropriate secondary placement.
37. Ms C’s first opportunity to do so was at the March review meeting (after the key stage deadline date) and then at the May alternative dispute resolution meeting. But the Council did not attend either of those meetings, compounding Ms C’s injustice.
38. Happily, this fault did not leave X without an educational placement in September 2025. But it is likely there was some avoidable frustration, distress and uncertainty for Ms C that could have been avoided.

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Agreed action

39. I recommended that, within one month of my final decision, the Council:
• apologise. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• make a symbolic payment of £500 to Ms C to recognise the frustration, uncertainty and distress caused to her by the lack of communication with her about X’s key stage transfer.
40. I understand from the Council’s response that it has undergone what it describes as unprecedented staff shortages. I am also aware that an Ofsted “Surrey Local Area SEND Partnership Improvement Plan” has actions for the Council to take to improve communications with stakeholders. And that the deadline for completion of this work has not passed. But I ask the Council, within a month of my decision:
• to share with the Ombudsman an update on its communications plan/protocol and how learning from this complaint can feed into that plan, including around a process for ensuring parents and young people are promptly advised about staff changes and how communication is not impacted due to staff absence;

• remind its staff the SEND Regulations do require a review (including a meeting) within the 12 months before a child moves between phases of education.

41. The Council has agreed to my recommendations. It should provide us with evidence it has complied with the above actions.

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Decision

42. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman