Summary: Mr and Mrs X complained the Council failed to transfer their son, Mr Z’s Learning Difficulties Assessment onto an Education, Health and Care plan. They say that because of this, Mr Z has not had an adequate education after his college course ended. We found the Council failed to transfer Mr Z to an Education, Health and Care Plan as it had agreed it should do. He therefore probably missed out on planning for adult life, and Mr and Mrs X missed being able to challenge the Council’s decisions about this. The Council’s complaint response was also at fault, causing them avoidable distress. The Council has agreed to pay a financial remedy for Mr Z, apologise to him and his parents and make service improvements to prevent reoccurrence of the identified fault.

The complaint

1. Mr and Mrs X complain on behalf of their son Mr Z that, because the Council failed to transfer his Learning Difficulties Assessment onto an Education, Health and Care Plan, he has not had adequate education to meet his needs.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. 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). Mr and Mrs X’s complaint concerns the Council’s actions and inactions in 2014 and 2015 which they complained about in 2018. I have exercised my discretion to investigate back to 2014 because the consequences of the matters complained about only became apparent in 2018.
6. 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 our final decision with Ofsted.
7. 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)

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How I considered this complaint

8. I spoke to Mr and Mrs X about the complaint.
9. I considered the Council’s reply to my enquiries.
10. I read the non-Statutory Guidance – Special Educational Needs and Disability: Managing the September 2014 changes to the system.
11. I considered the Ombudsman’s guidance on remedies.
12. I gave the Council and Mr and Mrs X the opportunity to comment on my draft decision. I considered any comments before making my final decision.

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What I found

Relevant law and policy

13. The law relating to the education and training of children and young people with special educational needs (SEN) and disabilities changed during the period September 2014 to March 2018.
14. The Children and Families Act 2014 meant that where children were on Statements of SEN, councils had to replace them with Education, Health and Care (EHC) plans. EHC Plans can cover and require specific educational provision for the young person until they reach 25 years old. They also help prepare the young person for adulthood, smoothing the transition to support if needed from adult social care. Councils had to complete the transfer for all children and young people on Statements of SEN by 1 April 2018.
15. A Learning Difficulties Assessment (LDA) was part of the previous (pre EHC Plan) way of working. Councils had to complete an LDA for all young people with a Statement before they left school-based education. The aim of an LDA was to set out the young person’s learning and or physical difficulties and their impact on learning. The LDA considered what support the young person needed to help them access education. Councils could also decide to carry out an LDA for young people with special educational needs but who did not have a statement.
16. There was no legal duty on councils to make the educational provision specified by an LDA, unlike a statement or EHC Plan. These place a duty on the council to ensure the special educational provision set out in the statement or plan happens.
17. No new LDAs were issued after September 2014, other than those still being finalised. To support transition to EHC Plans, parents or young people with an LDA could ask their council for an EHC needs assessment from 1 September 2014. The expectation was that all young people getting support from an LDA, remaining in further education, who requested and needed an EHC Plan would be issued with one.
18. Young people in further education or training who had support to meet their SEN because of an LDA and who intended to continue in education beyond 31 August 2016 could choose either to:
• Continue, for the time being, to get support through their LDA where required or,
• Request an EHC needs assessment.
19. During academic year 2015-2016 councils had to consider whether an EHC needs assessment was required for young people who were getting support because of their LDA and who were likely to stay in further education or training beyond 31 August 2016.
20. Where a young person has an EHC Plan, councils must review that plan each year. The council must decide whether to continue to maintain the plan. If the council decides to end the plan, the young person has a right to appeal that decision at the SEND Tribunal.

Background

21. Mr and Mrs X’s son Mr Z is a young man, now in his early twenties, with severe learning disabilities and autism. He had a Statement of Educational Needs from age four until he left school at 16 in 2012.
22. The Council carried out a Learning Disabilities Assessment in 2012, which said he was being taught in a setting designed for pupils with autism. This was College 1 where he studied for two years after leaving school.
23. Mr Z then moved in 2014 onto a three-year full time ‘high needs’ study programme at mainstream College 2, funded by the Council. This was an entry level course designed for learners with Autism, helping them develop independent living skills. The Council later agreed to fund an extra fourth-year, four day per week programme at College 2 that ended in July 2018. I return to this later in my decision.
24. The Council wrote, in October 2014, to the parents of all young people with a Learning Disabilities Assessment (LDA). The letter explained they could ask the Council to change the LDA to an Education, Health and Care (EHC) Plan. It explained this would give statutory rights in education up to 25 years old. The letter asked the young person or their parents to contact the Council to ask for assessment for a new EHC Plan.
25. Mr and Mrs X are sure they responded to the letter and requested an assessment for Mr Z to transfer onto an EHC Plan. In response to their later complaint the Council told them it had no record that they had asked for this. However, in response to my enquiries, the Council accepted it started an EHC Plan assessment for Mr Z in October 2015. It sent a letter to an educational psychologist asking them to start this assessment. The letter said, “Following a discussion with [Mr Z’s] parents, it has been agreed that [he] will be the subject of a new Education, Health and Care Plan”.
26. The resulting psychologist’s assessment refers to Mr Z’s progress at College 2. It set out several “suggested outcomes that might be taken into consideration when creating [Mr Z’s] Education, Health and Care Plan.”
27. The Council does not know why it did not finish the needs assessment, or why it did not then finalise and issue the EHC Plan it had agreed was necessary. Mr Z continued studies at College 2.
28. Mr and Mrs X attended a review meeting at College 2 in June 2018, before his course there was due to end in July 2018. By now Mr Z was in his early twenties. College 2 was only able to further offer part time, non-accredited provision (just over seven hours per week). This did not go ahead as Mr and Mrs X were concerned the offer did not meet Mr Z’s needs. They felt he had missed out from the Council’s failure to complete an EHC Plan.

Mr and Mrs X’s complaint to the Council

29. Mr and Mrs X wrote to their MP later in 2018 complaining Mr Z now had no adequate education or training placement, having now left College 2.
30. Mr and Mrs X’s MP complained to the Council on their behalf in October 2018 about the adequacy of educational provision for Z. The Council said College 2 could not offer more tuition. The Council explained its adult social care team was assessing Mr Z and the family to see what extra educational provision it could arrange.
31. Mr and Mrs X complained to the Council in January 2019 in more detail about the situation. They said the Council had failed to transfer Mr Z’s Statement to an EHC Plan. They said it had given them misleading advice about how he could now get a plan. They said children’s and adult social care services were not working together to help. They said all that had been offered to Mr Z was the part time course that would not meet his complex needs.
32. The Council responded at stage two after over two months. It said Mr and Mr X had not replied to the letter about LDA transfer it sent in 2014 so had not moved Mr Z onto an EHC Plan. It explained how to now ask for an EHC Plan assessment. It apologised for failing to organise joint meetings of professionals supporting Mr Z and said it would improve practice in the future.
33. Mr and Mrs X asked for the complaint to be considered at stage 3 in March 2019. The Council replied in early April apologising for delays caused by the prolonged absence of the SEND officer involved in the case. It suspended the investigation. Then it wrote again in June to say the officer was still unavailable and that, with Mr and Mrs X’s agreement it would now address the complaint as far as it was able.
34. The Council replied at stage 3 in July 2019. It apologised for only being able to deal with some of their complaint because an officer was no longer available. It said it had no record Mr and Mrs X had requested EHC Plan assessment in 2014 so had taken no further action. It said Mr Z had not needed an EHC Plan to stay on the course at College 2. It again advised how Mr and Mrs X could ask for an EHC Plan assessment. It referred them to the Ombudsman.
35. Mr and Mrs X told me the Council had been unable to answer much of their complaint because of long-term staff absence. Had the Council acted in 2014 when they were sure they asked it to, it could have given Mr Z longer term secure access to support.
36. In response to my enquiries the Council accepted evidence it had now found showed it should have transferred Mr Z onto an EHC Plan. It had started to do so in 2014 and couldn’t explain why it had not finished this. It thought that, if it had acted without this fault, it would still probably not have funded Mr Z’s studies beyond July 2018. This is because the college considers any further study could be carried out through their adult learning provision, without the need for an EHC Plan.
37. The Council has said it is making service improvements to prevent reoccurrence of the fault identified and to check about others that might have been affected. It says it has checked that all other post 16-year old students that it funds have EHC Plans.

My findings

38. The Council started to transfer Mr Z’s LDA onto an EHC Plan in 2014, probably because Mr and Mrs X had requested this and certainly following contact from them about this. It started an assessment and contemporary evidence states it intended to complete the transfer, placing Mr Z on an EHC Plan. For unknown reasons it did not complete this to issue Mr Z with an EHC Plan. This was fault, meaning Mr Z was not issued with a plan that would have considered his education, health and social care needs.
39. The educational psychologist’s assessment from 2015 recommended Mr Z’s EHC Plan should have considered a range of outcomes so Mr Z could “develop life skills, enabling him to access as much independent living as possible”. A completed EHC Plan would have enabled consideration of this range of support. The course at College 2 was aimed at independent living but a plan could have considered whether this should continue until Mr Z was 25.
40. Therefore, but for the fault, the Council would have issued Mr Z with an EHC Plan. This would have described his special educational needs, set out the support needed, and the outcomes sought for him, including the outcomes related to transition to adult life. This would have triggered Mr and Mrs X’s right of appeal to the SEND Tribunal about the plan, had they disagreed with it.
41. The Council would also then have had to carry out annual reviews of the plan. If it had decided to end the plan at any point before Mr Z reached 25, this would again have triggered Mr and Mrs X’s rights to appeal that decision to the Tribunal. Therefore, the fault means Mr and Mrs X again lost out on appeal rights.
42. Also, but for the fault, the Council would have needed to coordinate planning for transition of its support to Mr Z from children to adult services. Instead, as identified in the stage 2 complaint response, the Council failed to hold coordinated meetings until that complaint. Therefore, Mr Z lost out on the opportunity of effectively planned transition.
43. The Council has said that, but for its faults, it probably would not have decided to fund Mr Z’s studies after the provision it had been funding at College 2 ended. There is no evidence of Mr and Mrs X being unhappy with the provision at College 2 up to the point it ended.
44. Therefore, but for its fault, it is likely the Council would have ceased to maintain an EHC Plan for Mr Z beyond that point. But a decision to end the plan, or to reduce or change educational provision at that point would have triggered appeal rights, allowing Mr and Mrs X to challenge that decision. Because of the Council’s fault, Mr and Mrs X are left with uncertainty about what provision would have been required by an EHC Plan.
45. The Council, in its complaint investigation, told Mr and Mrs X it had no record of them requesting Mr Z’s transfer onto EHC Plan. Its response to my enquiries shows that in 2015, it had agreed, following discussion with them, that he should be transferred to an EHC Plan, and had started the assessment process. On the balance of probabilities, it is therefore likely Mr and Mrs X’s recollection is accurate and that they had requested the transfer. The Council’s investigation therefore wrongly found this had not happened. There was also delay in its stage 2 and 3 responses. These faults caused Mr and Mrs X additional frustration.
46. Mr Z and the family have now moved away from the Council’s area. They are now starting work with the new council on an assessment of his needs as an adult. A fresh EHC Plan assessment and plan is therefore not an appropriate remedy.
47. In calculating a remedy for injustice caused to Mr Z I am not able to say, even on the balance of probabilities, what level of support Mr Z would have received after July 2018, but for the Council’s faults. I have therefore recommended a token financial remedy that is based on the considerable uncertainty caused by the lack of planning for Mr Z’s adult life that could have taken place if he had an EHC plan.
48. The Council has indicated it has audited its current caseload to check that young people over 16 with SEN it provides additional funding to have EHC plans. This is appropriate action to help check on whether the identified faults have affected others. It should confirm the outcome of this review to the Ombudsman, setting out improvements made.

Agreed action

49. Within one month of my final decision the Council will:
• Apologise to Mr Z for failing to complete his transfer to an EHC Plan.
• Pay Mr Z £2,000 as a token remedy for injustice caused by this fault.
• Apologise to Mr and Mrs X for failing to complete the transfer of Mr Z’s EHC Plan and for wrongly telling them it had no record of their request for this transfer.
• Pay Mr and Mrs X £300 as a token remedy for distress caused by this fault.
50. Within three months of my final decision the Council will:
• Provide the Ombudsman with evidence it has completed its service improvements resulting from this complaint to:
1. Improve tracking of the progress of EHC Plan cases and
2. Check that all young people aged 16 and over with SEN that it provides additional funding to, have EHC Plans.

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Final decision

51. I have completed my investigation. The Council was at fault causing injustice to Mr Z and Mr and Mrs X. It has agreed to take actions to remedy injustice and prevent reoccurrence of the fault.

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Investigator's decision on behalf of the Ombudsman