Stockton-on-Tees Borough Council (16 004 812)

Category : Adult care services > Transition from childrens services

Decision : Upheld

Decision date : 06 Jan 2017

The Ombudsman's final decision:

Summary: The Council did not monitor C’s preparing for adulthood transition plan and it delayed consulting College 1 before naming it in C’s Education, Health and Care Plan. This caused two months of unnecessary uncertainty and anxiety.

The complaint

  1. Mr and Mrs B complain on behalf of their son (C), who has severe autism and learning difficulties, that the Council failed to plan his transfer from school to college.
  2. In particular they complain the transfer was inadequate and rushed, leading to their son needing six months to settle at college and causing them problems and stress.
  3. They also complained they were not told what educational provision would be made for C from September 2016.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. She 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, she may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
  2. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. She must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
  3. If the Ombudsman is satisfied with a council’s actions or proposed actions, she can complete her investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i))

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How I considered this complaint

  1. I spoke to Mrs B about the complaint. I considered the Council’s response to my enquiries.
  2. I considered:
    • the Special Educational Needs Code of Practice 2001 (“the 2001 code of practice”)
    • the Children and Families Act 2014
    • the Special Educational Needs and Disability Code of Practice: 0 to 25 years, January 2015 (“the 2015 code of practice”)
    • Transition to the new 0 to 25 Special Educational Needs and Disability System – Guidance, September 2015 (“the guidance”)
    • the Council’s 2005 Children, Education and Social Care, Policy, Procedures and Practice Guidance, Transitional Planning into Adult Services
  3. I sent Mr and Mrs B and the Council my draft decision and took their comments into account.

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What I found

  1. A child with special educational needs (SEN) may have a statement. The statement sets out the child’s needs and what arrangements should be made to meet them. The Council is responsible for making sure that all the arrangements specified in the statement are put in place. Statements are reviewed each year.
  2. In September 2014 statements of SEN were replaced by Education, Health and Care Plans (EHCP). The timescale for councils to decide and prepare an EHCP is detailed in the 2015 code of practice and the guidance. The 2001 code of practice still applies for those who have a statement, rather than an EHCP.
  3. The guidance says, to transfer a child or young person from a statement of SEN to an EHCP, councils must undertake a “transfer review”. This replaces the annual review of the statement and must be completed within 12 months of the previous annual review.
  4. The council must notify the child’s parents of the start date of the transfer review at least two weeks beforehand. For transfer reviews started before 1 September 2015, the council must carry out a needs assessment and finalise an EHCP within 14 weeks from the end of the notice period.
  5. For young people transferring from secondary school to a post-16 institution on 1 September 2015, the council must complete the transfer review before 31 May 2015.
  6. The 2015 code of practice says if a child’s parent requests a particular post-16 institution the council must name the college in the EHCP unless:
    • it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
    • the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources
  7. The council must consult the college concerned and consider their comments before deciding whether to name it in the EHCP, sending the college a copy of the draft plan.
  8. The Council has an education, health and care panel, which advises on whether to proceed with an EHCP. There is also a local Children’s Multi-Agency Panel which approves placements.

Preparing for adulthood transition planning

  1. The 2001 code of practice says the annual review of the statement in Year 9 (and any subsequent annual reviews until the young person leaves school) must include the drawing up and subsequent review of a “transition plan”. This prepares for the young person’s transition to adult life, including any on-going school provision. The Connexions Service must be involved in the review and are responsible for coordinating delivery of the transition plan.
  2. The 2015 code of practice says if it is clear that a young person wants to attend a different school or a college, then that school or college must co-operate so that it can help to shape the EHCP and start developing a post-16 study programme tailored to their needs.
  3. Young people aged 19 to 25 with an EHCP should have free access to further education. However, there is no entitlement to continued support or an expectation that those with an EHCP at age 18 must be allowed to remain in education or training from age 19 to 25.
  4. A council must not cease an EHCP simply because a young person is aged 19 or over. It may cease the EHCP if it decides it is no longer necessary. It should consider whether remaining in education or training would enable the young person to progress and achieve their outcomes.
  5. Councils must set out the support and provision that 19 to 25-year-olds with SEN can access regardless of whether they have an EHCP.
  6. Young people with SEN turning 18 may become eligible for adult care services. Under the Care Act 2014, the council must carry out an adult care transition assessment where there is significant benefit to a young person in doing so.

What happened

  1. Mr and Mrs B’s son, C, has severe autism and learning difficulties. He is non-verbal and uses a communication device. He had a statement of SEN and attended School 1, a special school which caters for pupils with autism, five days a week. School 1 is not in the Council’s area.
  2. An interim support plan was completed in January 2014. This set out how C’s care and support needs would be met as he moved from children’s to adult services.
  3. The statement issued in April 2014 said C should stay in School 1 until the end of Year 14 (July 2015) when he would be 19. The note of the review says Mrs B had concerns about the continuation of C’s education after Year 14. She considered College 1 would be the best provision for C from September 2015. College 1 is also outside the Council’s area. Mrs B had also requested College 1 at C’s Year 9 review in 2010.
  4. The Council decided to transfer C’s statement to an EHCP. There was a transfer review meeting on 24 February 2015. The outcome of the meeting was that School 1 should complete a Transition Action Plan to aid C’s move to his next school. The Council also asked an educational psychologist to assess C.
  5. The Council told Mrs B that her request for C to move to College 1 would need to be considered by the Council’s education, health and care panel after the transfer review was finished. The Council expected this to be the end of April 2015.
  6. Mrs B complained to the Council that the planning of C’s transition to College 1 was being left too late. C would need time to get used to College 1 before he started there. There would not be enough time if it was left until after Spring 2015. She also raised concerns about lack of local post 19 education for people with autism.
  7. On 15 April the Council’s education, health and care panel agreed C should attend College 1. It asked the local Children’s Multi-Agency Panel to consider funding the placement because the college was out of the Council’s area.
  8. The Council issued the draft EHCP on 1 May and the final EHCP on 22 May.
  9. The Council responded to Mrs B’s complaint. It said the transfer from C’s statement to EHCP had been completed within timescales set out in the code of practice. C’s preparing for adulthood transition planning had started when he was in Year 9 (2010). The transition plan had been discussed at the annual review in 2013. However, the Council accepted there was no record of it monitoring the transition plan. In future it would ensure a detailed transition plan was part of the EHCP and that it would be monitored and amended as required at the annual review.
  10. Mrs B escalated her complaint to stage 2. She considered the Council did not understand the impact on C of the late planning of his transfer from school to college. She complained there was still no final decision on C's future.
  11. In June the local Children’s Multi-Agency Panel agreed to fund C’s placement at College 1 for the academic year 2015/16. The Council told Mrs B the outcome on 13 July. It said transition meetings would be held every half term at College 1 “to ensure a comprehensive transition plan was devised and implemented.”
  12. The Council responded to Mrs B’s stage 2 complaint. It said C would attend College 1 five days per week. C had already visited College 1 and at least one more visit was planned.
  13. The Council sent a revised final EHCP naming College 1 on 17 July. In August College 1 confirmed C’s place.
  14. In June 2016 Mr and Mrs B complained to the Ombudsman about the late planning of C’s move to College 1. They said this had caused them and C a great deal of stress. The quality of C’s education in his first year at College 1 had been affected as it took him time to settle in. He had had more seizures than normal. Mrs B said these had been brought on by the stress of the transition. College 1 had called them numerous times and they had had to travel there to help C. They considered if transition had started in Year 9 with visits and regular contact with College 1 the process would have been smoother. They felt the Council had placed the burden of the move on the family and wanted an acknowledgement from the Council about how difficult the year had been for the family.
  15. Mrs B also said she still did not know what provision had been made for C for the academic year 2016/17. In response to my enquiries, the Council said it had agreed a further year’s funding for C at College 1 for five days a week. It said it had written to Mrs B about this on 29 March 2016. College 1 was named in the amended draft EHCP issued in July 2016.
  16. Mrs B says she did not receive the letter and that the draft EHCP did not clarify the number of days that C would attend College 1. She had therefore been unable to plan her employment. She had still been trying to clarify the number of days in August 2016 and it was only when the Ombudsman became involved that the Council responded.

My findings

  1. This case is complex because it happened during the change in the special education system and because it involves four types of transition:
    • from school to post 19 education
    • from SEN statement to EHCP
    • from children’s social care to adult social care, and
    • “preparing for adulthood” transition planning
  2. Mrs B’s complaint is about the planning for C’s move from School 1 to College 1. She is concerned he did not have enough time to get used to College 1 and that he therefore found the change unnecessarily stressful and his education and health were affected. The Council had known since 2010 that she wanted C to attend College 1; she felt transition could have started then.
  3. There is no duty on the Council to start transition between School 1 and College 1 until College 1 was named in the EHCP. I have therefore looked at whether the Council complied with the timescales set out in the guidance when C transferred from a statement to an EHCP.
  4. The guidance says C’s transfer review must be completed within 12 months of his previous annual review and his final EHCP must have been issued by 31 May 2015. The transfer review meeting was held in February 2015, within 12 months of the previous review. The meeting agreed that School 1 should complete a Transition Action Plan. However, the Council has not been able to provide a copy.
  5. Mrs B had made her preference for College 1 clear in 2010 and in C’s 2014 annual review. The 2015 code of practice says, when producing the EHCP, the council must consult the college that Mrs B had requested and send it the draft EHCP. The Council has accepted that the normal EHCP consultation process with College 1 was not followed. It said “admission was as the result of Mrs B’s complaint and discussion at the Children’s Multi-Agency Panel”. This is fault. I can see no reason why College 1 was not consulted while the EHCP was being developed in spring 2015.
  6. The final EHCP was issued on 18 May, although a revised version naming College 1 was issued in July. It should have been issued 14 weeks after Mrs B was notified of the transfer review. I have not seen any evidence of this notification so cannot confirm if this timescale was met. However, a final EHCP was issued within 12 weeks of the transfer review meeting.
  7. I have considered how the Council carried out C’s “preparing for adulthood” transition planning.
  8. The 2001 code of practice says annual reviews from Year 9 until the young person leaves school must consider a transition plan. A transition plan was discussed in 2010 at the Year 9 annual review. The Council has accepted this was not monitored in later reviews. This is fault. In response to my enquiries the Council was unable to provide a copy of the transition plan.
  9. The Council said C had visited College 1 before he started there but has not provided records of these visits.
  10. I find there has been fault by the Council. It did not consult College 1 and consider their comments before deciding whether to name it in the EHCP, or send it a copy of the draft plan. It did not monitor the transition plan.
  11. I have considered whether this fault caused injustice to C or to Mrs B. C started at College 1 in September 2015, so there was no loss of educational provision, although Mrs B says the quality of his education was affected. However, Mrs B had made clear her preference for College 1 in April 2014. The Council was therefore aware of this preference when it started C’s transfer review. It should have consulted College 1 during this process. If it had done so it could have named College 1 in the final EHCP issued in May 2015. Mrs B would still have considered this too late, but it would have been two months earlier than happened. I therefore find the fault by the Council caused two months of unnecessary uncertainty, anxiety and distress for C and Mr and Mrs B.
  12. Mrs B also complained she was not told what C’s education provision was for 2016/17. The Council says this was set out in C’s July 2016 EHCP and that it wrote on 29 March. I have seen the March letter. It was addressed to C and says that the 2016/17 provision will be set out in the EHCP. The EHCP says which college C was to go to. It does not say what hours he will attend. I have seen that Mrs B contacted the Council several times over the summer to find out how many days a week C would attend. I understand this would have been frustrating and stressful and prevented planning. However, there was no fault by the Council. It met its duty to name the provider in the EHCP.
  13. Mrs B is concerned the Council is reluctant to fund C’s education. If the Council wishes to change C’s EHCP it must do so in good time to allow her to appeal.

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Agreed action

  1. The Council has agreed to, within a month of my final decision:
    • Apologise to Mr and Mrs B for the unnecessary uncertainty and anxiety caused and pay them £100 to acknowledge the injustice.

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Final decision

  1. The Council did not monitor C’s preparing for adulthood transition plan and it delayed consulting College 1 before naming it in C’s Education, Health and Care Plan. This caused two months of unnecessary uncertainty and anxiety.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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