The Ombudsman's final decision:
Summary: Mrs Y complained about the Council’s failure to make proper arrangements for her son, who has special education needs, when he moved to post 16 education. The Ombudsman has found the Council to be at fault that caused an injustice to both Mrs Y and her son. To remedy this injustice, the Council has agreed to apologise, make a payment to Mrs Y and review its procedures to ensure reviews take place when they should to allow for proper transition planning to take place.
- Mrs Y complains the Council failed to properly assess and support her son, D during his transition to post 16 education. This led to the college placement breaking down and D becoming unwell and unable to access any education or training. She says this has had a significant impact of D’s well-being and future prospects. Mrs Y says it also caused her a great deal of stress and anxiety.
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)
- A child with special educational needs (SEN) may have an Education, Health and Care Plan (ECHP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
- The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP 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
- In considering this complaint I have:
- Read the information presented by Mrs Y with her complaint;
- Put enquiries to the Council and Mrs Y and studied their responses;
- Researched the relevant law and guidance, decisions and reports issued by the Ombudsman and our Guidance on Remedies;
- Shared a draft of my decision with Mrs Y and the Council and have taken comments into consideration before reaching this final decision.
What I found
- The responsibilities of the Council, settings and partner agencies (including health bodies) are set out in the Children and Families Act 2014 (the Act) and associated Regulations and statutory guidance, the SEN Code of Practice 2015 (amended) (the Code). Agencies are expected to work in an integrated way, with the child and family fully included in decisions.
- The move between schools, especially at the key phase transfers from nursery to infant, primary to secondary and then to post-16 education, is an important moment for any child and especially those with SEN. The Code says that advance planning for these moves is essential. The year 9 review starts the planning procedure for transition to post-16 provision.
- The Code also says that when a young person with a EHCP is to transfer from one post-16 education provision to another, plans must be reviewed and amended by 31 March for a transfer into the new academic year (usually September) (The Code, paragraph 9.181).
- The Code says that reviews should normally be held at the educational institution attended by the young person and the school must prepare and send a report of the meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the Plan and should refer to any difference between the school or other institution’s recommendations and those of others attending the meeting. The Council must then decide within four weeks of the meeting if it proposes to keep the EHCP as it is, amend it or cease to maintain it.
- In 2015 the Ombudsman issued a focus report entitled “Special Educational Needs: preparing for the future” which set out our concerns about delay and transition planning. It gives examples of decisions finding fault and remedies recommended to put things right.
- I have set out below a summary of the key events. It is not meant to show everything that happened.
- D has Attention Deficit and Hyperactivity Disorder and an anxiety disorder. He has a recent diagnosis of autism and mental health problems. His ECHP was first issued in November 2016 and his final amended ECHP was dated March 2018. He was due to move to post 16 education in September 2018. It is widely reported in the records I have seen that D had had a difficult time throughout his education. He suffered with anxiety and it is recorded that uncertainty and change have had a negative impact on his behaviour and mental health in the past.
- The letter from the Council to Mrs Y accompanying his final amended ECHP in March 2018 said, “further amendments to the ECHP will be made during the summer term, once D’s post 16 placement is confirmed”.
- In March 2018, Mrs Y contacted the Council to express her concerns for her son’s future. She told the Council that D was unsettled, anxious and worried about going to college in September 2019. At the time he was enrolled at a mainstream school but was studying for GSCE’s off site and was being taught by an external learning provider.
- There are no records to tell me what the Council did in response to Mrs Y’s telephone calls in March 2018. The Annual Review did not take place until 8 August 2018. The plan for his future education was discussed at the Review. College B was identified as a possible suitable placement with an appropriate course.
- Mrs Y became concerned that she was unaware what arrangements were being put in place to support D at College B. She made a number of phone calls and emailed both College B and the Council. Mrs Y spoke to his college tutor who was unaware of his needs and it became clear the proposed course was at an unsuitable level that would not challenge him enough. This is evidenced by emails I have seen.
- Concerned by this, Mrs Y made enquiries of other colleges and found an alternative course at a different college, College E. The Council has said 1:1 support was in place for D’s first day at College E. College E has provided the Ombudsman with a statement to support this. Mrs Y strongly disputes that adequate support was in place.
- Within days it became clear that D was not coping. Mrs Y says it was a far larger teaching group than expected which included adult learners. Mrs Y had made it clear during discussions that D could only cope in a small group setting, not with 20 plus other students.
- College E, concerned by D’s non-attendance, discussed the matter at a meeting with the Council on 28 September 2018. There was a further meeting with D and his parents that same day. It was agreed that D would attend college on a part time basis to assist with his transition to the college environment.
- This was unsuccessful and D did not return. This change in circumstances prompted an early Annual Review of his ECHP that took place in December 2018.
- D’s parents first complained to the Council in October 2018. They also complained to D’s former headteacher about the school’s part in failing to arrange an Annual Review and working with D to prepare him for when he left school.
- The headteacher accepted the Annual Review should have taken place in March 2018. He said it hadn’t taken place because of staff changes and absences and the “desire to get the transition right”. He said any inadequacies in the transition planning process were largely because D was being educated off site.
The current position
- D’s mental health and anxiety has since deteriorated, and he has been unable to access education or other activities he previously enjoyed such as boxing. The Council has commissioned an educational psychology assessment and intends to review his ECHP once D is well enough to be reassessed. This process is ongoing. In the meantime, D remains at home, with nothing meaningful to occupy him.
- Mrs Y says the Council’s failure to make suitable and timely arrangements for his move from his previous educational setting to mainstream college has caused his subsequent decline in mental health. Mrs Y says D feels like he has been left on the shelf and that no one cares.
The Council’s response to the Ombudsman’s enquiries
- In response to my enquiries, the Council acknowledged there was delay. But is does not accept he stopped attending college because of problems with College E. D had a long history of poor mental health and it was his expressed wish to not continue in education.
- The Council says it has made significant attempts to work with Mrs Y and D to identify a solution going forwards. Unfortunately, D’s anxiety and mental health problems have meant he had been unable to engage to any meaningful extent with this process but it will continue to work with them both once he is able to participate.
- My role is to consider how the Council has met its statutory duties and considered all relevant information when deciding on what provision to deliver to D as he moved to post 16 education.
- My investigation has identified a number of areas of fault.
Failure to carry out an annual review
- Mrs Y told the Council in March 2018 that D’s ECHP has not been reviewed since it was first issued in November 2016. The ECHP is dated 2 March 2017 (with the final amended Plan being dated 2 March 2018). While is unclear from reading the case records why these dates are so far apart, the ECHP should have been reviewed in March 2018, to be in compliance with the Code. This has not been disputed by the Council in its response to my enquiries. On the evidence seen so far, this is fault.
- The records show Mrs Y contacted the Council in March 2018, requesting assistance and telling the Council that a review had not taken place.
- Mrs Y says the August 2018 review only took place because of her persistent requests. There are no records about what happened in response to her phone calls in March 2018. This is disappointing and leads me to reach the conclusion that nothing did happen.
- Mrs Y’s husband, Mr Y made the first formal complaint in October 2018. He told the Council the ECHP had not been reviewed since it had been first issued in November 2016.
- In response the Council told Mr Y that the ECHP was reviewed in July 2017. This was incorrect.
- It was only because Mrs Y made a separate complaint to D’s former headteacher that it was confirmed this review had not happened. A meeting did take place but neither D or Mrs Y were aware of it and none of the formalities complied with.
- The Council should have been aware this review had not taken place.
- Mrs Y’s frustration at having to go to such effort to have this fact accepted by the Council is entirely understandable.
- In response to my enquiries, the Council has accepted it did not ensure D’s annual review took place in good time to allow for proper arrangements to be put in place for D’s transition to his next educational setting.
- It is disappointing that the Council did not acknowledge this sooner, when Mr Y first complained in October 2018. Instead of accepting a failure to comply with the Code, the complaint response to Mr and Mrs Y (November 2018) said, “There was a Transitional Annual Review held on 8 August to ensure that D had a smooth transition to College D”.
- Also, in its original complaint response, the Council sought to hold the school responsible for this. While councils may allow schools to take the lead in making arrangements for practical purposes, the legal duty to ensure this takes place at the right time rests with the council.
- In this case the review took place less than a month before D was due to start college, over the holiday period, when many relevant people would be unavailable.
- The law says this should have taken place many months before and by 31 March at the latest. This was a delay of at least five months. Infact, general transition planning should take place at a much earlier stage, from year 9 onwards. Mrs Y says this did not happen.
- In the case of a young person who struggles with anxiety and change, as is the case here, the delay is clearly problematic. The failure to arrange the annual review, no other transition planning and the last minute nature of what followed, on the evidence seen so far, is fault.
Failure to make suitable arrangements and ensure adequate support was in place at College D
- Soon after the August 2018 review, Mrs Y became concerned that the arrangement being made were not appropriate for D. There was a misunderstanding about the course specifics and whether they were suitable. This is clearly evidenced by the emails she sent to the council asking entirely sensible questions about what provision would be in place to support D.
- To try and put this right, Mrs Y helped D to find an alternative at the last minute at College E. Again, she asked the Council what support was going to be in place but I have seen no evidence of her questions being answered.
- Sadly, it took only a matter of weeks for the college placement to break down completely
- The Council says suitable arrangements were in place. Mrs Y says they were not.
- I have been provided with a statement from College D’s SEN officer. She says College E had put measures in place to support D based on his EHCP. She also says that Mrs Y had said D was not prepared for the move because of a failure to carry out proper transition planning.
- When considering complaints, if there is a conflict of evidence as is the case here, 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.
- While the statement from College E satisfies me that in all probability some arrangements were in place and that College E did its best to support D during the short time he was there, D was just not ready for the move to college, arguably because of the failure to make timely preparations expected by the Code.
- I accept it is possible that the college placement could have broken down in any event. However, the last-minute arrangements and no clear plan being made available in advance lead me to a conclusion that on balance the arrangements were unsuitable and had a bearing on what happened afterwards. My saying this is not intended as a criticism of College E, rather it was as a result of the Council’s fault in relation to transition planning.
Failure to deal with formalities after the review
- Also, contrary to the Code, the Council failed to inform Mrs Y within four weeks of the August 2018 review meeting whether the Plan would be amended, remain unchanged or cease.
- If the EHCP needs to be amended, the Council should start the process without delay. It must send the parent (or where appropriate the young person) the proposed amendments and give them at least 15 calendar days to comment.
- On the evidence seen, there was fault here.
- Mrs Y says the failure to prepare D has had a devasting effect on his mental health and longer-term prospects. The Council says support was in place and it is not responsible for the breakdown of the college D course and what happened afterwards.
- What exact impact the Council’s failings had on D’s education and mental health I cannot say. Time is critical in a young person’s life and education. A delay of many months cannot fail to have an adverse impact. That is why the Code recommends planning for important transitions, planning the Council denied D. With proper and timely transition planning D may have been able to cope with the move to college. On the balance of probabilities, I find the failures have likely hampered D’s progress and added avoidable stress and anxiety for him and his family at a critical point in his educational career.
- What I cannot say with any certainty is that the Council’s actions directly caused the unfortunate decline in his mental health. While I accept it could have been a contributing factor, in the absence of any direct evidence supporting a causal link I cannot make such a finding
- In addressing the impact on D, I have taken account of our Guidance on Remedies, the remedies set out in the examples in our Focus Report and in published reports and decisions on similar cases. Our Guidance on Remedies suggests a financial remedy of between £200 and £600 for each month of lost provision (using a school year of 9 months). This is then adjusted to reflect the circumstances of the case. I have applied this when considering the recommendations made in this statement.
- The remedy below also recognises the impact this has had on Mrs Y and the time and trouble she has spent trying to get the Council to take action in respect of this matter.
- Sadly, D’s mental health is such that little work can take place until he is better. I would encourage the Council to keep in regular contact with D and Mrs Y until such time as D is well enough to engage in meaningful discussions about his future.
- In recognition of the faults identified in this report, the Council has agreed to take the following actions, to be completed within six weeks from the date of my final decision:
- Apologise in writing to D and Mrs Y for the faults identified in this decision.
- Pay Mrs Y £500 in recognition of the distress, anxiety, time and inconvenience caused by the failures identified in this investigation and helping D through this difficult time. This is a symbolic payment as it is clear that financial redress cannot adequately compensate for what has happened
- Pay Mrs Y £2700 to be used for D’s benefit. This recognises the failure to provide the annual/transitional review took place at the right time and the lack of transition planning which contributed to D being unable to access education for a whole school year. The Ombudman’s Remedies Guidance states it should be between £200 and £600 for every month of lost education during the academic year 2018 - 2019. I have decided it should be at the lower end of this scale (£300) to reflect the fact it is possible the placement could have broken down in any event.
- Review its procedure to ensure all secondary school pupils in years 9,10 and 11 with EHCPs have a Transition Plan in place, that these are reviewed as required and that appropriate support is provided to pupils in transition planning. The Council should provide the Ombudsman with a report setting out what it has done to ensure this happens
- I have found the Council to be at fault because it did not ensure timely transition planning to D when he moved to college. The Council has agreed a suitable remedy.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman