The Ombudsman's final decision:
Summary: The Council was not at fault in the support it offered to Mrs X’s son during his transition to post 16 education and training. Her son has special educational needs. There was some fault in the Council’s delay in carrying out a social care assessment but no significant injustice arose from this.
- Mrs X complains that the Council failed to comply with its legal obligations in respect of post 16 provision when her son, Y, who has special educational needs, left school. In particular, she complains about the following matters:
- Lack of person-centred planning.
- The contents of the Education Health and Care Plan (EHCP).
- The impact caused by lack of suitable local provision and associated feasibility issues.
What I have investigated
- I have not investigated a) as this relates to matters that are beyond the scope of the Ombudsman’s jurisdiction.
- I have investigated a small part of b) relating to a failure to conduct a proper assessment of adult social care needs for inclusion within the EHCP, as well as possible delay. These are within the Ombudsman’s jurisdiction. All other aspects of the complaint relating to the EHCP (including person-centred planning) are outside of the Ombudsman’s jurisdiction.
- Mrs X has made other complaints about poor communication, conduct of meetings and provision of information. Mrs X has previously accepted the Council’s proposals for service improvements and so I do not intend revisiting these matters here. The Council has accepted suggestions made by Mrs X about how matters could be improved in future and I am satisfied this is a suitable outcome and does not warrant further investigation. I am satisfied nothing further could be added to what the Council has already done.
- I have not investigated events occurring prior to April 2015. I appreciate there is an argument that what happened before this date is inextricably linked and has impacted on events since. However, Mrs X did not complain to the Council until June 2016. I have read the Council’s detailed responses to Mrs X’s complaints about this and again, I am satisfied nothing further could be added to what the Council has already done. I see no reason to investigate this part of the complaint.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))
- We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
- The Court of Appeal reconfirmed that we cannot investigate a decision because it has been or could reasonably be appealed to a tribunal. We also cannot consider the consequences of that decision. Any loss of education during this period is outside of the Ombudsman’s jurisdiction, unless the matters complained of are not inextricably linked to the appeal (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman)  EWCA Civ 1407)
- 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- it is unlikely we could add to any previous investigation by the Council, or
- it is unlikely further investigation will lead to a different outcome, or
- we cannot achieve the outcome someone wants, or
- there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- I discussed the complaint with Mrs X and considered the written information she provided. I made written enquiries of the Council and considered the responses received. I have read the entirety of Y’s SEN case records. I took account of all the information before reaching a draft decision on the complaint. I have considered comments received by Mrs X in response to the draft decision before reaching my final decision.
What I found
- The Children and Families Act 2014 sets out how councils should assess and meet the needs of children and young people who have special educational needs. The young person may have an EHCP setting out their needs and the provision to meet them. These plans supersede statements of special educational needs under previous legislation. Transitional arrangements apply and the government has provided guidance for councils about the process
- Under both sets of arrangements a young person with a statement or an EHCP should have a transition plan. It should start in Year 9 and be reviewed as he approaches transfer from school to further education.
- If an assessment of a child’s special educational needs leads to a decision to issue an EHCP (or Statement) the Council has a duty to issue the EHCP in the format prescribed and within the timescales in the Children and Families Act 2014, and the SEN and Disability Code of Practice 2014 (updated 2015), and to ensure the provision in the Plan is put in place.
- Councils should complete an assessment of SEN and provision of a Plan within a maximum of 20 weeks.
- Councils are not obliged to provide exactly what each parent requests, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of any individual child. Where a parent or young person disagrees with the contents of the Plan (or Statement) there is a right of appeal to the Special Educational Needs and Disability (SEND) Tribunal about the educational part of the EHCP.
- Councils are required to arrange educational provision from the date an EHCP is made.
- The Ombudsman cannot change a EHCP; only the SEND Tribunal can do that. The Council is responsible for making sure that all the arrangements specified in the EHCP are put in place. The Ombudsman cannot look at complaints about what is in the EHCP but can look at other matters, such as where support set out in a statement has not been provided or where there have been delays in the process.
- The SEND Tribunal has limited jurisdiction over parts D (care needs) and H (care provision) of the EHCP. This is within the jurisdiction of the Ombudsman.
- I have set out below a summary of the key events. There has been extensive correspondence between Mrs X and the Council, all of which I have considered, but it is not possible to set out in this decision.
- Y is a young man with a diagnosis of autism. In 2011, a Statement of Special Educational Needs was issued for him. He attended a special school as a weekly boarder from 2011 until 2014 when his statement lapsed. In line with the law at the time, he was then supported by a Learning Disability Assessment.
- The planning for Y’s transition into adult education started in 2012 although meaningful discussions started from October 2013. At this time, Y was 15 years old.
- A dialogue started between Mrs X and the Council’s SEN Transition Officer to identify a suitable placement for Y to move onto once he left boarding school. Y is an academically able young man who encounters difficulties learning in a more traditional learning environment because of his autism and associated sensory processing difficulties.
- In September 2014, Y started a course at a mainstream further education college. While this was considered successful in some respects, it was only a one-year course. Mrs X advocated on Y’s behalf saying he needed more specialist local provision.
- Many months were spent trying to identify a suitable placement for Y to attend from September 2015. 17 different options were explored by Mrs X and the Council.
- In April 2015, the Council proposed that Y should have an EHCP. The Council felt this would provide a structure going forward. Mrs X agreed and made a formal request for an EHCP in June 2015.
- In the meantime, Mrs X and the Council continued to discuss and consider options for September 2015. A number of problems were encountered which included the following:
- Y did not satisfy the entry requirements for some courses, including distance learning.
- Y was unsure what vocational path he wanted to follow.
- Location and transport issues.
- In November 2015, the Council offered what it described as a “bespoke individual programme” to Y. This was a vocational programme with access to a number of work experience placements arranged by training provider Z.
- Mrs X and Y felt they had insufficient information to make an informed decision. The Council therefore facilitated a dialogue between Z and the family.
- The Council agreed to undertake a statutory assessment for an EHCP on 29 June 2015. The first draft EHCP was issued in December 2015.
- Mrs X lodged her disagreement to the draft on 14 December 2015. She said it was factually incorrect and contained significant omissions, as well as not complying with statutory guidance. She said it was impossible to agree to the education setting as none had been proposed.
- Mrs X submitted her proposed draft on 4 January 2016. This include a proposal regarding Y’s social care needs.
- A further working draft was issued on 19 February 2016 but was rejected by Mrs X. This led to a discussions and a further draft was issued on 26 April 2016. Mrs X objected to this on 11 May 2016.
- The Council issued a third draft on 11 August 2016. Despite some reservations from Mrs X, this was agreed and finalised in August 2016. Z was the named provider.
- However, Mrs X then objected to the EHCP by way of an appeal to the SEND Tribunal. A revised EHCP was agreed between the parties in June 2017.
- Mrs X says Y started his most recent placement, arranged by Z, in late June 2016 although did not start properly until September 2016. Z reported that he was supported with work experience and independence skills such a cooking and money management. I understand the focus has been on work experience but to date the Council has reported there has been limited engagement by Y. However, I attach no criticism to Y by saying this. In response to a draft version of this decision Mrs X has reported Y has fully engaged with the programme.
Social care needs
- A social care assessment was completed in June 2017. Y was assessed as being eligible for support but declined any services, but said his needs could be met by his family. This assessment was incorporated into Y’s EHCP shortly before the SEND Tribunal, although this is disputed by Mrs X.
The Council’s response
- The Council has provided detailed and considered responses to Mrs X’s complaint. This included meeting with her. The Council has accepted that in certain areas the case has highlighted some areas for improvement. These include the following:
- It should have sought a better understanding about Y’s views on certain proposals at an earlier stage.
- There should have been better information available about what provision was available, together with eligibility and funding criteria.
- The statutory timescale for finalising an EHCP is 20 weeks. In this case it took over a year. During this time Y received no formal support although he has engaged in some voluntary work. I must consider whether this delay was attributable to fault by the Council.
- From reading Y’s SEN files, I can see the additional time (between December 2015 and August 2016) was taken up with a detailed and extensive dialogue between Mrs X and the Council seeking consensus about the content of the EHCP. I can see the Council was responding to Mrs X and while it was not always agreeing to what she wanted the Council was actively engaged.
- My conclusion is that the delay was accountable and there was no fault by the Council as it was using its best endeavours to listen and respond to Mrs X. I appreciate Mrs X would say she only had to do this because the Council did not get it right in the first place. However, as the content of the EHCP was the subject of a later appeal to the SEND Tribunal, the Ombudsman has no jurisdiction to consider this.
EHCP and adult care needs
- One area of specific concern to Mrs X was the failure within the draft EHCP to properly assess Y’s adult social care needs. The Council’s view was as he did not qualify for services there was no need to record any needs on the EHCP. Mrs X did not agree. She said that eligibility for services is not the same as whether Y had any needs. I agree with Mrs X.
- I agree that the draft EHCP should have been informed by a full assessment. This should have been carried out and his needs recorded on his draft EHCP. This assessment was not completed until June 2017, shortly before the Tribunal hearing.
- While I consider this delay to be fault, I find no significant injustice was caused because Y has refused adult care support.
Lack of suitable provision and feasibility issues
- Fundamental to Mrs X’s complaint is the Council’s failure to provide or commission suitable provision for Y. She says none of the many suggested settings/providers/arrangements were able to meet Y’s needs. She says all of the options were based on what the provider was already providing rather than what Y needed. She says her complaint is about the impact this had on herself and Y.
- An example was that Y wanted to engage in an academic course at A level standard but felt unable (because of his SEN) to sit a formal exam. Similarly, for other courses he did not meet the academic entry criteria because of his difficulty in sitting exams. Mrs X says the Council should have commissioned a bespoke service that could cater for his need for academic challenge and interest without the requirement to sit an exam at the end of the course.
- The situation was made worse because often the suitability of a course did not become apparent until many months after a provider was proposed either by Mrs X or the Council. By this time many emails, meetings and discussions had taken place, some involving Y, which came to nothing. This left both Mrs X and Y feeling frustrated and disappointed in the process.
- In response, the Council has said that the post-16 funding regime, to a large extent, is reliant on what the market provides. But it has worked within the current funding regime to source a study/work programme to meet Y’s needs. Mrs X is of the view that it is for the Council, as the commissioner, to fund a suitable work study programme and Y should not be constrained by what is already “out there”.
- I do not find fault in the Council’s approach to this aspect of the complaint. This may reflect a wider issue about lack of specialist resources for young people with SEN but this is beyond the scope of the Ombudsman’s jurisdiction. The Council has undertaken a considerable amount of work and had both identified solutions as well as exploring the options put forward by Mrs X and Y. It is disappointing that they have not worked out but this is not attributable to fault by the Council.
- The Council has provided an explanation about feasibility of the various options not being resolved sooner. It has said that it is only through discussions and meetings and exchanges of information with providers that some courses were shown to be unsuitable. Having considered the documentation, I agree and have not seen any examples where the Council has failed to explore options suggested by Mrs X in a timely manner.
- This is a complex case. Understandably Mrs X has high expectations about what the Council should provide for her son as he becomes an adult. What the Council has done has not been good enough in her view.
- While I understand Mrs X’s frustration that the Council was initially unable to meet Y’s needs, this is not attributable to fault by the Council. From the evidence I have seen, the Council officers have worked hard to meet Y’s needs and Mrs X’s expectations. The fact there was some delay in this happening, it is not due to fault by the Council.
- The Council has provided a training programme that has been confirmed by the SEND Tribunal as being able to meet his needs
- Mrs X’s view is that as there was no provider able to meet Y’s needs, the Council was obliged to commission one that did. This is what the Council effectively did when it identified Z.
- The case has highlighted some areas for improvement and I welcome the fact the Council has accepted these already.
- I find the Council was not at fault in the support it offered to Mrs X’s son during his transition to post 16 education and training. There was some fault in the delay in carrying out a social care assessment but no injustice arose from this.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman