The Ombudsman's final decision:
Summary: There was fault by the Council in the way it managed a disabled young person’s transition to college and in failing to respond effectively to concerns the young person’s special educational provision was not in place. There was further delay in intervening when the young person was excluded from college. The Council has agreed to apologise, provide a financial remedy and review its procedures. The complaint is upheld.
- The Representative, whom I shall refer to as Mrs X, complains on behalf of her son, whom I shall refer to as Mr Y that:
- The Council did not ensure one to one provision set out in Mr Y’'s Statement of special educational needs (‘the Statement’) was provided when he transferred to college in September 2016.
- Mr Y was to receive 22.5 hours of one to one support but received only one hour per week (plus access to 15 hours per week shared support).
- The Council sought to blame the College for failing to provide the support although it has a non-delegable duty to ensure support in a Statement or Education, Health and Care (EHC) plan is made.
- When it was identified that the College had not provided the correct provision / support and did not have sufficient funding, the Council did not effectively intervene. As a result, Mr Y was placed on a part-time timetable and left unsupported which may have led / contributed to his permanent exclusion in January 2017.
- The Council failed to hold an emergency review when Mr Y was excluded from College and the College did not do so.
- The Council failed to provide Mr Y with suitable alternative full-time education:
- When the College placed him on a part-time timetable
- When he was excluded from college.
What I have investigated
- I have investigated the actions of the Council. For reasons set out below I cannot investigate the actions of the College.
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We cannot investigate complaints about what happens in education settings. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- A child with special educational needs may have a Statement or an Education, Health and Care Plan. The Statement or Plan sets out the young person’s needs and what arrangements should be made to meet them. The Council is responsible for making sure that all the special educational provision specified in a Statement or Plan is put in place. The Ombudsman cannot look at complaints about what is in the Statement / Plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
- If we are satisfied with a council’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)
How I considered this complaint
- I have considered information provided by Mrs X and the Council including:
- Special educational needs (SEN) documents
- Social care documents
- Correspondence and documents between Mrs X, the Council and the College
- Complaint documents
- The Education Act 1996 and Children and Families Act 2014, associated Regulations and Codes of Practice
- The Ombudsman’s Guidance on Remedies.
What I found
- In 2012 Mr Y had a Statement which included 22.5 hours of one to one support per week from a learning support assistant (LSA).
- In September 2015, the Council wrote to Mrs X and told her that Mr Y’s Statement would need to transfer to an EHC plan (as he was transferring to post 16 provision) and it would shortly be arranging a transfer review.
- The law and guidance says that for a young person transferring from school to post 16 provision the transfer review must be completed by 31 March 2016. This includes naming the post 16 institution they will attend.
- The Council gave notice Mr Y’s transfer review would start on 29 January. The Council said the transfer should take no longer than 18 weeks and must be completed by 2 June 2016.
- Mr Y’s transfer review meeting was held on 5 May 2016. No-one from the Council attended. The report noted the current Statement had 22.5 hours of one to one support plus an additional 10 temporary hours in place until the end of the school year.
- The Council gathered professional advice and issued a draft EHC plan on 30 August 2016. The delay was due to a late report from the educational psychologist. The draft EHC plan stated Mr Y would receive education at his school until July 2016 and at a post 16 college from September 2016. The 22.5 hours of support was specified for the period until July 2016, but the section for post 16 support was not specified. It simply stated the post 16 setting would ‘receive sufficient resources’ to allow Mr Y to work towards the outcomes in his Plan. The setting was left blank, as is required by law to allow parents and / or the young person to state their preference.
- It was agreed Mr Y would attend College A. Mr Y attended a taster day before the Plan was finalised. An incident occurred on the taster day involving Mr Y which led Mrs X to change her mind that College A was a suitable placement.
- On 13 September 2016, the Council consulted alternative colleges.
- On 23 September 2016, the special educational needs (SEN) officer held a multi-agency meeting with Mr Y, his parents, a youth development worker, an autism outreach worker and a careers advisor. Mr Y and his parents were interested in Mr Y attending College B. The SEN officer had formally consulted College B, but not yet received a reply. The SEN officer also agreed to investigate autism support that could be provided.
- Mr Y started at College B on 29 September 2016. The College anticipated in its consultation response it could meet Mr Y’s needs with the same provision in the Statement (22.5 hours of LSA time per week). As Mr Y’s EHC plan had not yet been issued in final form the Statement remained the legal document in force.
- The Council did not provide additional temporary hours. It told Mrs X later this was because College B said it could meet need with 22.5 hours of funding.
- As soon as Mr Y started at college, the College suggested a multi-agency meeting to discuss more fully the support Mr Y would require. A team around the child (TAC) meeting was held on 7 October 2016.
- I have not seen any notes from this meeting but Mrs X’s stage one complaint refers to a discussion that:
- adequate funding and provision was not in place at College B for Mr Y on 7 October and that this had come as a surprise to Mrs X,
- the SEN officer agreed to take the case to panel to request additional hours to support Mr Y throughout the college day (including break times).
- A mentor with autism awareness to support Mr Y through college
- Access to autism outreach staff
- A key member of college staff to build a relationship of trust with Mr Y
- College staff to monitor the peers Mr Y was engaging with
- For Mr Y to have limited time offsite at lunchtime
- For Mr Y to have supervision during all unstructured time due to safeguarding risks if left unsupervised
- One to one support during academic work to stay on task
- Optimal funding to be in place as soon as possible to support a high level of support.
- The College was funded for eleven high needs pupils, any additional pupils required full funding
- Funding arrangements for College B were different than College A where Mr Y was originally going to attend
- Mr Y had been receiving approximately 15 hours of support, this was not enough to meet his needs and he had no dedicated worker at present
- He has been ‘touching base’ mornings, lunchtimes and in additional learning support (ALS) sessions. He is set up with work at the start of ALS sessions but not continuously monitored
- In class support is about 10 hours and there is a learning support mentor in most classes but not in all
- It may be possible to backdate funding as at least 22.5 hours should have been covered and placement at College B was offered on basis Mr Y’s needs could be met
- It was the Council’s understanding needs were being met. Further needs were to be negotiated.
- In total Mr Y was to get 28.5 hours support including lunchtimes and break times.
- A key worker should ideally be assigned to Mr Y all day to minimise risk.
- It could take the College up to seven weeks to employ someone as a designated key worker, in the interim the College will look at employing an agency worker. The SEN officer will follow this up.
- College B have bought the Gold Service autism outreach which is a six day package and can be used flexibly but is not available until April as it runs through the financial year. The SEN officer will look into getting extra days which costs £425 per day or to buy two years.
- At home there are short periods of time that are unsupported when necessary; concerns were expressed particularly around inappropriate internet use. College B was to investigate whether this was due to peer influence.
- The draft EHC plan required amending.
- Mr Y was not receiving any education or services since his permanent exclusion on 28 February 2017.
- No meetings took place with the Council from 12 January until 22 March. Mrs X considered the Council should have intervened sooner.
- Autism outreach support had been declined at the 20 March 2017 review even though Mr Y needed this service and had been funded to receive it.
- Mr Y wanted to do an apprenticeship in Mr X’s business but they could not progress this without Council funded support.
- Mr Y had an EHC plan and needed transition support
- The College had not informed the Council about Mr Y’s exclusion.
- It had repeatedly asked the College to hold an EAR and one was arranged for 2 February ‘however this was cancelled by the SENCO at [College] in an email dated 27 January 2017 following a discussion between [Mrs X] and [College]’.
- On 7 October 2016, the College confirmed Mr Y was being offered support in all lessons and guided to lessons. Mrs X wanted one to one support at all times, including lunch and break times, and autism outreach support. The Council then agreed extra support subject to clear strategies and this was confirmed on 18 November 2016.
- When Mrs X raised concerns in November the Council arranged a meeting for 30 November 2016. The College agreed to purchase the gold package of autism outreach from April and could purchase additional days in the interim. The Council agreed it would look at backdating funding. It was agreed the College would employ an interim LSA. The Council said the SEN officer and College were in regular contact in relation to sourcing the LSA and were led to believe that the College were fulfilling their duties in sourcing suitable provision.
- The Council advised an EAR. It could not attend on 25 January but re-arranged it for 2 February. Mrs X and the Head of SEN then had a lengthy discussion when Mrs X said her legal adviser had told her not to engage in the EAR and to continue with the appeals process. This was contrary to advice by Council to hold the EAR.
- A TAC was suggested but declined on 3 February.
- Funding was made available to the College in the usual way which was that the College were informed of the level of funding and payment would be made once an invoice was received. The invoice was received on 2 December and paid within 4 weeks.
- At a meeting on 21 April, the Council had agreed Mr Y could continue to be supported by autism outreach. Mr Y said he did not want any tutor or formal education but to do an apprenticeship (this needed to include a learning element and be with a recognised provider).
- Education institutions operate on agreement with commissioners not on whether funding had been received in advance. The College knew funding had been agreed and would be expected to plan support on that basis. The Council recognised the College had not put the support in place and the Council ‘should have addressed this as a matter of urgency’.
- The Council agreed additional hours on 18 November 2016. The implementation of the support was for the College to address. The Council understood the College would be sourcing an LSA for Mr Y and a failure to do so was something Mrs X would need to take up with the College.
- The position the College took about funding was not what the Council would expect of an education provider.
- Funding was agreed in October when Mr Y was enrolled, but the Council received an invoice from the College in December.
- The Council considered the meeting to review Mr Y’s support on 25 January was important but could not attend, but the College was clear about the purpose of the meeting.
- Mrs X declined the TAC meeting and her legal adviser declined the EAR.
- The Manager responding to the complaint had interviewed the SEN officer who stated Mr Y had expressed a view in April 2017 that he wanted to continue working and not return to education.
- The Council accepted ‘there was an issue between [the College] and the local authority SEN Service in terms of the hours of support required by [Mr Y] and the funding agreed. This issue could have been resolved with greater expediency by both parties…I have sight of correspondence…that clearly shows the College delaying the additional support agreed…I also accept that Mr Y was given 32.5 hours of support in Year 11 at his previous school, as an interim measure, but that his placement reverted back to 22.5 hours when he started at [College B], as was written into his original Plan. This level of support could have continued initially at [College B] to see how [Mr Y] transitioned. The College, however, agreed to accept [Mr Y] with an EHCP with 22.5 hours and only alerted the LA for additional funds in November.’
Transfer to EHC plan
- The Council delayed in transferring Mr Y’s Statement to an EHC Plan. This should have been completed by 31 March 2016, because Mr Y was transferring from school to College (post 16 provision).
- The Council started the transfer too late (in January 2016), expecting to complete it in June 2016, although this was after the deadline of 31 March. The transfer process should have taken no more than 18 weeks and completed in June, but the Council did not send a draft EHC plan until the end of August, just before Mr Y was due to start college. This delay is fault.
- Councils must offer families a face to face meeting during the EHC transfer. The Council did not attend the transfer meeting in May and did not provide a further opportunity to discuss the Plan. This was fault.
- The draft EHC plan sent in August was not specified and quantified. It did not state clearly the amount of one to one support Mr Y would receive. It referred to ‘sufficient funding’ being provided. This is too vague. Caselaw and the Code of Practice 2015 are clear that a Plan must leave no doubt as to what will be provided.
- Even if a final Plan had been issued before Mr Y started college in September 2016, it would have needed amending when he changed the college he wanted to attend. As there were two meetings in October and November 2016, it is difficult to understand why the Council did not issue another draft EHC plan until 30 December 2016.
- The Council offers a meeting to families if they disagree with the draft EHC plan. Mrs X requested a meeting but the Council finalised the Plan on 24 January 2017 without holding the meeting promised. This was fault. The Council told me this must have been because the exclusion overtook events and it was sorry for this oversight. I find the issuing of the final EHC plan was not related to the intervening exclusion but because the SEN officer felt obligated to issue it in line with statutory timeframes and stated this could not wait. As the Plan was already significantly late and the timescale of 18 weeks had long since passed, I can see no reason why the SEN officer considered it necessary to issue the Plan on 24 January. This would seem to have been an internally imposed deadline.
- Mr Y’s Statement remained the legal document in force until 24 January 2017. This provided funding for 22.5 hours of LSA time per week. It is also apparent that College B accepted Mr Y with 22.5 hours funding and the Council agreed to provide this level of funding in September 2016. The Council agreed additional funding in late November.
- If the Council had completed the EHC transfer process within the statutory timescales (by March 2016) I consider it likely, on the balance of probabilities, that Mrs X’s concerns about 22.5 hours being insufficient would have been considered before Mr Y started college. It seems likely (as the Council has conceded in its complaint response) that 32.5 hours may have been allocated, at least until Mr Y had successfully transitioned into college. There were significant concerns about Mr Y being at high risk of undue influence from peers and engagement in potentially criminal activity. This was why the additional ten hours had been in place throughout his last year of school. It was considered important that Mr Y did not have unsupervised time. I consider that if the EHC process had been completed in a timely way then, on the balance of probabilities, Mr Y would have started college with a final EHC plan with 32.5 hours of support.
- I agree with Mrs X that this would have maximised Mr Y’s chances of engaging in lessons and avoided the occasions when he went missing from college for several hours, putting him at risk.
- The Council has placed a lot of emphasis in its complaint responses on the fact the College accepted Mr Y with 22.5 hours of support. I find the Council was wrong to put so much weight on this. The College did not know Mr Y, which it recognised by immediately requesting a meeting to further discuss his needs. I also do not know whether the Council shared information with College B about the additional 10 hours Mr Y had previously received in addition to the support on his Statement. If there had been a final Plan in place with 32.5 hours before Mr Y changed colleges then I anticipate College B would have requested the 32.5 hours continue at least in the short term.
- I cannot say that the incident in January 2017 would have been avoided if a higher level of support had been in place. I also cannot say Mr Y’s exclusion would have been prevented. I do accept that Mrs X will always have the uncertainty of whether events may have unfolded differently had Mr Y had the proper level of support from the start.
Non delegable duty to deliver special educational provision
- Councils have a binding legal duty to ensure that the special educational provision in Part 4 of a Statement or Section F of an EHC Plan is delivered. Councils may expect a school or college to do this, but if this doesn’t happen, the Council must step in and provide the special educational provision.
- I consider there was enough evidence available to the Council for it to know the College had not put in place the provision set out in Mr Y’s Statement (and proposed Plan) of 22.5 hours. It knew an LSA had not been employed and that by 30 November Mr Y was receiving only 15 hours of support, even though Council officers (including Children’s services) had expressed concern about Mr Y being unsupervised at any time, including at home. I agree with the finding in the Council’s own complaint response that the Council should have done more to ensure provision was in place sooner, particularly once it had approved the additional funding.
- While the Council says the SEN officer provided details of agencies and followed this up with several conversations with the College, there is no documentary evidence to support that this was followed up. I have also seen no evidence that the College told the Council full support was in place. If the SEN officer had followed up the matter thoroughly, the support would have been in place in December. It is apparent from the College’s email of 19 January that 22.5 (or 32.5 hours) of provision was never put in place.
- The absence of LSA support was an injustice to Mr Y and will have affected his ability to access full-time college education successfully. I cannot however say that the exclusion and subsequent events would not have occurred.
- Mrs X says Mr Y was placed on a part-time timetable due to insufficient funding and LSA support in college. I agree that this would, on the balance of probabilities, have been avoided if the Council had ensured the full-time LSA was in place. This represents a loss of full-time education to Mr Y for that period.
Cancellation of the EAR
- I find that it was the College, not Mrs X, who cancelled the EAR. The contemporaneous documents support this finding. Mrs X declined a suggested TAC, but the evidence is clear that she wanted the EAR to go ahead without delay.
- The SEN officer was wrong to conclude Mrs X was going against SEN recommendations.
- While the Council says there was a lengthy discussion between a Manager and Mrs X about this, I am not persuaded this did take place. This is because this discussion is attributed to two separate managers and it seems unlikely two people had the same conversation with Mrs X on the same day.
- It was fault to blame Mrs X for cancelling this meeting in the Council’s complaint response. The Council should apologise to Mrs X for its mistake in this regard.
Failure to consider alternative education following exclusion
- Mr Y remained entitled to the provision set out in his EHC plan after his exclusion until the Plan was ceased (or any appeal against ceasing the Plan was heard).
- The Council failed to consider providing Mr Y with alternative education in another setting or at home following his exclusion. This was fault.
- If the EAR or any other meeting had been held immediately following Mr Y’s exclusion, rather than several weeks later, then I agree with Mrs X that it may have been possible to keep Mr Y engaged in education. By the time the EAR was held on 22 March, Mr Y had been absent from college for two months and disengaged from formal learning.
- The period when Mr Y was left without access to education or training put additional caring responsibilities on his family.
Decision to do apprenticeship
- Mrs X says the SEN officer was not trained to obtain the views of a young person with autism and wrongly accepted Mr Y’s views that he wished to leave formal education.
- The contemporaneous documentation supports that Mr Y was clear he wanted to do an apprenticeship not return to formal education. While I acknowledge this may not have been Mrs X’s preference I do not have any evidence to support that this was fault by the SEN officer. I do accept that there was a missed opportunity to intervene before Mr Y had spent two months out of education and if this had happened the outcome might have been different.
- Within four weeks of my final decision the Council will apologise to Mrs X and Mr Y for the faults I have identified. The Council should acknowledge in its apology my finding that it was not Mrs X who cancelled the EAR and she was not responsible for Mr Y’s loss of education.
- Within four weeks of my final decision the Council will make a financial payment of:
- £1000 to Mr Y in recognition that he was not properly supported during his first term at college, was placed on a part-time timetable and then had a period without education or training. This recognises that the incident leading to exclusion may have occurred in any event and that Mr Y may not have completed his college course in any event. Given Mr Y is a vulnerable young person the money should be paid into an account for Mr Y’s benefit but where adult supervision of the account is available. The Council should discuss with Mrs X the most appropriate option.
- £1000 to Mrs X in recognition of her uncertainty whether Mr Y would have remained in education if there had been no fault and to acknowledge the additional caring responsibilities placed on Mr Y’s family when he was placed on a part-time timetable and absent from any education or training before starting his apprenticeship. The payment also recognises Mrs X’s time and trouble pursuing the complaint to the Ombudsman.
- EHC plans are issued in line with deadlines for phase transfers
- Meetings are always offered to discuss new EHC plans or transfers
- The Council has processes to check whether education settings have put in place provision in a Statement and EHC plan and to follow up concerns about missing provision until it is satisfied the provision is in place.
- The Council holds emergency reviews promptly when a young person with an EHC plan is excluded, or otherwise unable to attend their named placement, and to consider alternative provision.
- There was fault by the Council in the way it managed a disabled young person’s transition to college and in failing to respond effectively to concerns the young person’s special educational provision was not in place. There was further delay in intervening when the young person was excluded from college with the result by the time a review was held the young person had become disengaged from education. This caused injustice to the young person and his family. I have completed my investigation on the basis the recommendations set out above provide a suitable remedy for the faults identified. The complaint is upheld.
Parts of the complaint that I did not investigate
- I have not investigated the actions of the college because these are outside the jurisdiction of the Ombudsman. This means I have not investigated:
- Whether the College discriminated against Mr Y
- The College’s decision to exclude Mr Y.
Investigator's decision on behalf of the Ombudsman