Summary: Miss X complained about failings by the Council in the transition from a Statement of Special Educational Needs to an Education Health and Care plan, and its failure to ensure speech and language support was delivered in 2017. The Council failed to send the final plan to all relevant parties in August 2016, which delayed Miss X getting appeal rights. It also failed to provide speech and language support set out in her Statement from May to July 2017. It will apologise and make a payment for the uncertainty caused by the lack of provision.

The complaint

1. Miss X, who is represented by Ms Z, complained the Council:
1. did not carry out a needs assessment when moving Miss X from a Statement of Special Educational Needs (Statement) to an Education Health and Care (EHC) plan when it began the transfer process in October 2015;
2. delayed issuing a final EHC plan, although it knew Miss X was due to move to post-16 education, and the August 2016 plan did not set out the support Miss X expected;
3. said the August 2016 plan was a final EHC plan but did not provide information about appeal rights and failed to provide the special educational needs support in that plan from September 2016;
4. failed to provide proper education to Miss X from October 2017 when she was not able to attend the school named in her EHC plan, and then offered too little education after accepting a duty to provide it in December 2017;
5. failed to arrange an annual review of the EHC plan in a timely way after a court ruling in February 2018;
6. failed to assign a sufficiently senior officer to work on the case following the court ruling; and
7. failed to address gaps in the EHC plan.
8. commenting on a previous draft decision, Ms Z asked questions about the Council’s actions in relation to the review meeting in March 2018.

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What I have investigated

2. I have investigated complaints c), d) and f) and set out my reasons for not investigating the other complaints at the end of this decision statement. I have also considered whether there was a failure to provide support in line with the Statement or final EHC plan in the academic year 2016 to 2017, which came to our attention during the investigation.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. 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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) We have accepted some of Ms Z’s reasons for taking more than 12 months to complain to us from when she was first aware of the matters complained of. We have come to findings about matters after February 2017 when Ms Z first complained to the Council about a lack of support for Miss X and when she asked the Council to finalise Miss X’s EHC plan. This was the time the Council was also aware Ms Z believed the EHC plan had not been finalised. Therefore, we have used our discretion to look at matters 18 months before Ms Z first complained to us in August 2018.
7. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
8. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
9. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
10. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
11. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

12. I considered:
• the information provided by Ms Z and the Council;
• relevant law and guidance, as set out below; and
• our guidance on remedies.
13. Miss X, Ms Z and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Special Educational Needs (SEN)

14. A young person with special educational needs may have an Education Health and care (EHC) plan. This sets out what they need 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 education or name a different school. Only the SEND tribunal can do this.
15. Councils are responsible for making sure that arrangements set out in the EHC plan are put into place. We can look at complaints about this, such as where support set out in the EHC plan is not provided.
16. Prior to September 2014 young people who needed extra support in school had a Statement of Special Educational Needs (Statement). Statutory guidance set out the arrangements for transferring Statements to the new EHC plan. For those young people moving to the next phase of education, councils should issue an EHC plan by March of the calendar year in which the transition occurs. (SEND Code of Practice, 2015 at para 9.180).

Alternative educational provision

17. Section 19 of the Education Act 1996 states councils must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. Children are of compulsory school age until the last Friday in June in the school year in which they reach their sixteenth birthday. Although young people are required to be in education or training beyond this date, the law does not require councils to provide education for them. Councils do, however, have a duty to ensure the provision in a young person’s EHC plan is delivered.

What happened

18. Summary of the key events:
• November 2008 First Statement issued
• April 2013 Amended Statement issued
• October 2015 Transfer of Miss X’s Statement to an EHC plan begins
• June 2016 End of Miss X’s compulsory education
• June 2016 Council issued Miss X’s draft EHC plan
• August 2016 Council said it issued a final EHC plan
• September 2016 Miss X started a course at school A
• February 2017 Family told the Council Miss X was attending school A and

not receiving the special educational support she needed

• April 2017 Council request further speech and language assessment
• April 2017 Ms Z complained to the Council on behalf of Miss X
• May 2017 Council issued its first response to Ms Z’s complaint
• July 2017 Council issued it final response to Ms Z’s complaint
• August 2017 Amended draft EHC plan issued
• September 2017 Council consult with school B, which refused to offer a place
• October 2017 Council named school B on EHC plan
• November 2017 Court proceedings about school B’s refusal to accept Miss X
• December 2017 Council provide educational support (until February 2018)
• February 2018 Court issued consent order – school B to admit Miss X
• August 2018 Ms Z complained to the Ombudsman on behalf of Miss X

Analysis and findings

Complaint c) EHC plan issued in August 2016

19. Miss X was moving to post 16 education in September 2016. Therefore, to meet the requirements of the Regulation’s and the SEND Code of Practice the Council should have issued a final EHC plan by March 2016.
20. The Council told Miss Z in its complaint response of May 2017 that it had issued a draft EHC plan in June 2016 and accepted this was late and apologised. It provided a copy of a final EHC plan dated August 2016 and the covering letter that it sent with the plan. The covering letter sets out the rights to appeal to the SEND tribunal.
21. The Council told Ms Z in May 2017 that it had issued a final EHC plan in August 2016. This was the first Ms Z was aware of this, and it was only a few months outside 12 months before she complained to us. Therefore, we have exercised discretion to look at this part of her complaint.
22. Ms Z said she did not receive the letter or final EHC plan and did not accept it had been sent in August 2016. She says she realised the final EHC plan was delayed after receiving the draft in June 2016. She says as the plan was not finalised the family had to arrange which school Miss X would attend in September 2016. She says she telephoned the Council several times between September and December 2016. She says she spoke to two officers who told her the relevant SEN case officer had left and there was a backlog of cases waiting to be assigned. Ms Z says the Council did not tell her who Miss X’s EHC plan coordinator was until January 2017.
23. Ms Z says the final EHC plan was not signed by Miss X’s caseworker, who later left the Council, but by another officer. She feels this shows the plan was signed later than August 2016.
24. The Council said it sent the letter and final EHC plan to Ms Z and to the school it had consulted (the school Miss X was attending in the academic year 2015 to 2016). It referred me to the cover letter to the family which stated at the bottom “cc” to the school. The Council was not able to provide any other evidence that it sent the letter and EHC plan to the school. It said post between it and local schools is sent through an internal courier system. It has no evidence to confirm whether the school received the August 2016 EHC plan. The final plan noted
    Miss X would not be attending the school after July 2016.
25. The family were receiving support from the local Special Educational Needs and Disability Information Advice and Support Services (SENDIASS). The Council sent a copy of the draft EHC plan to SENDIASS in June 2016. Ms Z provided a letter from SENDIASS confirming it had not received a final EHC plan in August 2016. SENDIASS said it had no communication from the Council between June 2016, when the Council sent the draft EHC plan, until May 2017.
26. Ms Z wrote to the Council in February 2017 about support Miss X needed for her chosen course at school A. The letter referred to the draft EHC plan. It is clear from the letter Ms Z was not aware of a final EHC plan in August 2016.
27. In April 2017 Miss X and Ms Z attended a meeting with Council officers and SENDIASS to discuss the support Miss X needed. The record of that meeting stated:

“[Miss X] was having her statement transferred to an EHC plan in 2015/16 academic year. The process has not yet been completed”.

There was also reference to the family having received a plan in September but this was out of date as the outcomes referred to GCSEs, which Miss X had since completed.

The record also said:

“It was agreed by all that [Miss X’s] case needed to be prioritised to finalise the EHC plan”.

28. The Council said the comments made in April 2017 refer to Miss X being in a different school and the EHC plan therefore needed amending to reflect the new placement.

My findings

29. Where a council finalises an EHC plan I would expect it to send a copy to the family, the school it consulted, and other involved parties, such as SENDIASS. I would expect it to be able to provide a copy of its letter or email to show it did so.
30. The Council has provided a copy of a letter to Ms Z, which indicates at the bottom that a copy would be sent to the school it consulted. Ms Z said she did not receive this and her letter to the Council in February 2017 supports this. I have seen no evidence to show the EHC plan was sent to either the school or SENDIASS nor that either of them received it.
31. The record of the meeting in April 2017 stated the plan needed to be finalised. I am not persuaded this was referring to updating the plan to reflect the new school, since the language I would expect in that situation would be to amend or update the plan not to finalise it.
32. It is not clear which plan is referred to in the April meeting as having been received by the family in September 2016. I have not seen the Council’s daily records, which may have clarified this. Given the lapse of time, it may not now be possible to explore this aspect further.
33. For these reasons, on the balance of probabilities, I find a final EHC plan was not issued in August 2016.
34. Therefore, there was a delay in Miss X gaining appeal rights until a final EHC plan was issued in October 2017. I note Miss X did not use her appeal right in October 2017 but consider this does not mean she would not have done so in August 2016 because there were very different circumstances in 2017, as I will set out below. There was also some confusion about what support Miss X should receive as a result of the final plan not being issued in August 2016. I will consider below the support Miss X received in the academic year 2016 to 2017.

Support provided in line with the Statement or EHC plan

35. Councils must ensure the special educational support set out in a Statement or EHC plan is delivered. The courts have confirmed this duty is non-delegable.
36. Since I have found there was no final EHC plan issued in August 2016, the Council was required to ensure the support set out in the Statement was delivered until a final EHC plan was issued. However, that was not the Council’s position in 2016 and 2017 so I will take into account it considered the August 2016 EHC plan was in force at that time.
37. Ms Z says she did try to contact the Council between September and December 2016 but was told the caseworker had left and a new caseworker had not yet been allocated to the case. I understand a new caseworker was allocated in January 2017. In its complaint response, the Council accepted it became aware Miss X was studying at school A at this point.
38. Ms Z wrote to the Council in early February 2017 to say Miss X was now studying at school A, was not receiving the support she needed and asking for a personal budget to pay for additional support. Ms Z also noted “[Miss X] reports that she does not need support in class as the subject teachers are able to communicate and differentiate to her level”.
39. The Council also arranged a meeting with the family in April 2017, to discuss finalising the plan and what support Miss X needed. The family were unhappy with the EHC plan and said it was out of date.
40. The minutes of the meeting in April 2017 noted Miss X had told school A that she had a Statement when she applied for a place. However, it did not have a copy of her EHC plan, so it was not aware of the support set out in it. The minutes record the school had said when Miss X changed courses in October, it had failed to transfer across the information about her Statement. The notes say the school reported Miss X’s needs were not noticeable and Ms Z confirmed (at a meeting in April 2017) that Miss X’s needs were not apparent at first. When the Council became aware of the position it contacted school A and provided it with a copy of the August 2016 EHC plan. School A indicated it would request additional funding, but I note it did not do so.
41. At that meeting the Council agreed to request a further speech and language assessment of Miss X. The assessment took place in late May and a report was issued in early June 2017. The Council said it was not then able to arrange speech and language support because by July 2017 Miss X had decided she did not wish to pursue the course at school A.
42. School A met with Miss X and Ms Z in May 2017. School A understood this would be an annual review of the EHC plan issued in August 2016. The record of that meeting indicates the family disputed a final plan had been issued. School A agreed the EHC plan was out of date and needed updating. There was some discussion about what support Miss X needed for her course. The family wanted support in evenings and at weekends to help Miss X consolidate her learning but School A said it could not deliver this. School A offered support during gaps in Miss X’s timetable but the family did not accept this. School A later told the Council it had offered support but Miss X had not engaged with it.
43. The Council wrote to Ms Z in July 2017 setting out its final response to her complaint. On the issue of a lack of special educational needs support for her while at school A during 2016/17, the Council said school A did not request higher level funding and so was able to support her from its own resources. As a result, it did not feel it was appropriate to offer compensation.

My findings

44. I am persuaded that Ms Z did try to contact the Council from September to December 2016 but because there was no allocated caseworker she could not progress the matter. Given the lapse of time, I do not have sufficient evidence to make any findings about that period.
45. I find the Council was not aware Miss X was attending school A until January 2017 and was not receiving the support set out in her Statement or the August 2016 EHC plan until Ms Z wrote to the Council in February 2017. Once it became aware, the Council was under a non-delegable duty to ensure she received the special educational provision set out in her Statement or EHC plan, although I accept that it would take a few weeks to arrange this. I consider it should have been able to arrange support by the end of April 2017.
46. Both the Statement and EHC plan set out speech and language support and therefore, despite the confusion over which one applied at the time, I would expect some speech and language support to be provided from the end of April 2017. Although I appreciate the Council wanted an up-to-date assessment of Miss X’s needs as she was last assessed in September 2015, it should have provided the support set out in the Statement or EHC plan until such time as a new EHC plan was issued. It should not have waited until it had the fresh report before arranging the special educational support it was obliged to ensure she received. The failure to provide speech and language support between May and July 2017 was fault.
47. We would usually make a payment to remedy the disadvantage caused by the lost provision. In this case, it is unclear precisely what provision was missed. The Statement says support at the level recommended by a speech and language therapist. The speech and language therapist’s report attached to the Statement indicates a recommendation for 3 hours direct input and 5 hours indirect input. The 2016 EHC plan, which was based on the same report, says direct speech and language input of 3 hours plus indirect input of 5 hours. It does not specify the timescale. The 2017 EHC plan sets out similar provision to the 2016 plan but specifies this is per academic year. On balance, based on these documents, and assuming the provision was evenly spread throughout the year, I find Miss X lost less than 3 hours of provision.
48. Ms Z says the lack of provision caused Miss X a significant injustice. The Council disputes this and argues Miss X achieved good academic results at her previous school.
49. I have now seen the speech and language report that was attached to the relevant Statement and the August 2016 EHC plan and the fresh report dated June 2017. These documents do not indicate Miss X’s needs had increased as a result of the lack of provision during the academic year in question and the level of support recommended was not increased. This does not suggest the lack of provision between May and July 2017 caused a significant injustice. There is no other evidence available to me other than the accounts of the parties and it is unlikely that further evidence can be provided now given the lapse of time. Therefore, I will recommend a payment for the uncertainty about whether, if the support had been provided, Miss X would have been better able to access the education she was receiving.
50. The August 2016 EHC plan stated Miss X should have one to one support from a teaching assistant in the classroom. The Statement did not specify this. Ms Z told the Council in February 2017 that Miss X did not need support in the classroom, although the family did ask for support outside the normal timetable. The records show school A did offer some support from May 2017 but school A said Miss X did not engage with this. The family dispute there was a lack of engagement. I would not expect school A to provide support in the evening or at weekends since this was not set out in either the Statement or the EHC plan. Therefore, I do not find fault with the Council for the general support offered.

Complaint d) Education when Miss X was not able to attend school

51. Miss X decided not to pursue the course at school A. She wanted to attend school B from September 2017 but she made that choice too late for the Council to consult with school B before the summer holidays. It consulted with school B in September 2017 but school B refused to offer her a place. After court action, school B did offer a place from February 2018. In the meantime, Miss X was not in education. She complained the Council had not made alternative educational provision for her and that the Council should have directed school B to admit her.
52. Councils are not under a duty to provide alternative educational provision for young people who are not of compulsory school age and therefore it did not need to provide this when Miss X was not in education between September 2017 and February 2018.
53. Councils do have a duty, however, to provide the support set out in an EHC plan. The Council issued an EHC plan in October 2017, which named school B, and set out the support Miss X needed. Where a school is not able to meet a young person’s needs or refuses to do so, councils should consider an alternative placement and should also consider whether to take action to secure the placement named in the plan.
54. When school B refused to admit her, the records show the Council offered a place at school C in October 2017. On the balance of probabilities, school C would have provided the support set out in the EHC plan. Further, in November 2017, the Council wrote to the Secretary of State for Education seeking support to direct school B to admit Miss X. Therefore, the Council took appropriate action to arrange the provision in the EHC plan. In addition, the Council arranged education for 16 hours per week from December 2017, which was increased to 25 hours per week in January 2018. Since this was on a one to one basis it is more intense than teaching in a classroom setting and therefore 16 hours is regarded as full-time education. The Council was not at fault.

Complaint f) Officer assigned to Miss X’s case

55. It is for councils to decide who should work on a case, although they should consider any request for a change of officer. The Council decided the case officer assigned to Miss X’s case was competent to deal with it. Whilst Ms Z remains critical of the Council, it was not at fault in this respect.

Agreed action

56. The Council will, within one month of the date of the final decision:
• apologise to Miss X for not sending the final EHC plan to all relevant parties in 2016 and not providing speech and language support between May and July 2017 after it was aware she was attending school A;
• pay her £100 as a token to acknowledge the delayed appeal rights and confusion over what support should be provided during the academic year 2016 to 2017, and a further £150 to acknowledge the uncertainty about whether she would have been better able to access the education she was receiving at school A if the Council had ensure speech and language support was delivered. This makes a total payment of £250, which is in line with our guidance on remedies.
57. The Council will, within three months of the date of the final decision, review its processes to ensure that:
• when it issues a final EHC plan, it sends a copy to the school and other relevant parties, such as SENDIASS, and keeps an appropriate record to show it has done so; and
• it has systems in place to ensure the support set out in EHC plans is being delivered, particularly where the child or young person has moved to a new setting. The provision should be delivered until such time as it ends the plan or issues an amended plan.
58. It will provide evidence to the Ombudsman that it has completed these recommendations.

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Final decision

59. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.

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Parts of the complaint that I did not investigate

60. I have not investigated complains a) about the needs assessment which began in October 2015 and the first part of complaint b) about delay in issuing a final EHC plan when Miss X was due to move to post-16 education. This is because the complaints were late and there is nothing more we could achieve or suitable recommendations we could make. Although Ms Z complained to the Council in 2017 about events in 2015 and 2016, she did not complain to us until 2018. We expect people to complain to us promptly after the end of the Council’s complaints process. We considered the reasons Ms Z gave for the delay in complaining to us and whether there was a realistic prospect of reaching a sound, fair and meaningful decision. In May 2017, the Council accepted there had been a delay in transferring Miss X to an EHC plan as it took 43 weeks and it apologised. By the time Ms Z complained to us in 2018, there was nothing more we could achieve for these two complaints.
61. I have not investigated complaint e) as a court ruled when the review meeting should be held. Ms Z could have returned to the court. Matters decided by a court are outside the Ombudsman’s jurisdiction.
62. I have not investigated the second part of complaint b) about whether the August 2016 plan set out the support Miss X expected and complaint g) about gaps in the EHC plan because these are matters for the SEND tribunal. We have no authority to decide the content of an EHC plan nor can we comment on the findings of a SEND tribunal.
63. Commenting on a previous draft decision, Ms Z asked questions about the Council’s actions in relation to the review meeting in March 2018, complaint h). I am not considering these as they were not part of the original complaint she made to the Ombudsman and there is no evidence the Council had been given the opportunity to consider them.

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Investigator's decision on behalf of the Ombudsman