Summary: Mrs D complains on behalf of her son A, that the Council has not properly provided education for A and has failed to ensure his Special Education Needs (SEN) were met. The Council was at fault because it did not deal with an Education Health and Care Plan (EHCP) annual review properly, delayed transition planning for A, did not deal properly with a referral to an Educational Psychologist, failed to provide for A’s SEN needs and did not follow its complaints procedure. A missed out on SEN provision, his transition planning was delayed, Mrs D was unable to appeal to a tribunal about an EHCP annual review and Mrs D had to spend longer resolving her complaint. The Council has agreed to apologise to A, pay him £4600 for the SEN provision he lost, pay Mrs D £250 for the time and trouble in making her complaint and ensure staff are aware of timescales in statutory guidance.

The complaint

1. Mrs D complains on behalf of her son, A, that the Council has not properly dealt with or provided for A’s SEN because it failed to:

• carry out effective reviews and update A’s EHCP properly from 2016 onwards, including particularly in January 2018.
• place A at appropriate schools for his needs, resulting in him missing educational provision.
• make proper educational provision for A while he was not in education.
• refer A to an educational psychologist without delay.
• plan and provide for A’s transition to adulthood in his EHCP.
• deal with her complaint fully and properly

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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. 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)
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
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. 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

7. I have spoken to Mrs D about her complaint and considered the information she has provided to the Ombudsman. I have also considered the Council’s response to her complaint and its response to my enquiries.
8. I have written to Mrs D and the Council with my draft decision and considered their comments.
9. I have exercised discretion to investigate events dating back to 2016 because
• The ‘transition’ phase in SEN starts in Y9 and the impact of fault in transition may only become apparent in Y12 or Y13.
• Any fault about the January 2018 review only became apparent to Mrs D when A’s placement broke down and Mrs D complained within 12 months of that.

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What I found

10. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs 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 tribunal can do this.
11. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
12. Where a local authority maintains an EHCP for a child or young person it must secure the specified special educational provision for the child or young person. (Section 42 (1 & 2) of the Children and Families Act 2014)
13. A council must review an EHCP within 12 months of the plan being made. A council may reassess a child’s needs at any time if it thinks it is necessary. (Children and Families Act 2014 s44)
14. Where an EHCP is reviewed, the local authority and school must cooperate to ensure a review meeting takes place. A child’s parents must be invited to attend and given two weeks notice of the meeting. All advice and information should be sent to attendees at least two weeks before the meeting. Within four weeks of a review meeting, the Council must decide what action it is going to take and inform those involved. If the EHCP needs to be amended the Council should start the amendment process without delay. (SEND Code of Practice)
15. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer. (SEND Code of Practice)
16. In all cases, where it is proposed that a young person is to transfer between one post-16 institution and another within the following 12 months, the local authority must review and amend, where necessary, the young person’s EHC plan at least five months before the transfer takes place. (SEND Code of Practice)
17. Where this is not possible, local authorities should review the EHC plan with the young person as soon as possible, to ensure that alternative options are agreed and new arrangements are in place as far in advance of the start date as practicable. (SEND Code of Practice)

What happened

18. Mrs D’s son, A, is 19 years old. He attended a local mainstream secondary school from September 2011 to June 2016. A was diagnosed with Autistic Spectrum Disorder (Asperger’s Syndrome) and associated anxiety and challenging behaviour.
19. After leaving school, A did not attend college for a term. He attended two colleges, X and Y, between January 2017 and November 2018. At an EHCP annual review in January 2018, Mrs D and the Council disagreed about whether A’s EHCP needed to be amended.
20. A’s college placements broke down and Mrs D met with the Council about alternative educational provision for A. She complained about the Council failing to review A’s EHCP properly and lack of educational provision for A.

Analysis

Review and updates of A’s EHCP

21. In July 2016, a combined child in need and annual review took place. Following this A’s first EHCP was finalised in September 2016. It stated the next review was due by October 2017. The EHCP was updated in July 2017 due to a planned change of educational establishment.
22. The next annual review took place in January 2018. Mrs D wanted the Council to update A’s EHCP. Independent evidence from another person who attended the meeting supports Mrs D’s view that the EHCP required updating. This was not reflected in the records of the annual review held by the Council. A draft revised EHCP, based on the September 2016 EHCP, was prepared with the summary but not issued. The Council did not issue a revised EHCP, or write to Mrs D telling her that it did not intend to do so.
23. Annual reviews of A’s EHCP did not take place every 12 months. Mrs D was not made aware of her appeal rights regarding A’s EHCP after the January 2018 annual review. The Council did not follow statutory guidance. This is fault by the Council. Mrs D lost the opportunity to appeal to SEND about the content of A’s EHCP. Mrs D says A was unable to attend a specialist college and consequently did not receive educational provision in 2018/19. I have addressed the issue of loss of provision later in my decision.

Educational placements

24. The Council consulted with college X about whether it could meet A’s needs before he attended in January 2017. The Council provided no evidence to show that it consulted college Y about whether it could meet A’s needs before he attended in September 2017. However, a separate record of the emergency annual review in June 2018 provided by Mrs D shows that college Y said it could meet A’s needs. This is not fault by the Council.

SEN provision

25. When A left secondary school, the Council was under a duty to provide SEN provision in his EHCP.
26. The Council agree that A did not attend educational placements between 25 June 2016 to 16 January 2017 and between 1 November 2018 to 1 April 2019. While A was not attending an educational placement, it follows logically that he could not therefore have received any SEN support during those times.
27. The Council was aware that A was not attending college Y in November 2018. It met with Mrs D in January 2019, told her what alternatives it was considering in April 2019 and an alternative placement was confirmed between the end of May to July 2019. The Council was slow to consider alternatives. No evidence was provided by the Council to show any SEN provision was made during the short time of the alternative placement.
28. A did not receive any SEN provision in his EHCP between September 2016 and January 2017 and also between November 2018 and July 2019. This is fault by the Council. A missed out on SEN provision.

Educational Psychologist referral

29. The Council said it would make a referral to an educational psychologist at a meeting with Mrs D in January 2019 to discuss provision for A. An educational psychologist (EP) was present at A’s annual EHCP review in May 2019.
30. After the meeting in January 2019, Mrs D clearly had an expectation that an EP would assess A and provide a report to the next annual review. She asked the Council repeatedly for an update about the EP referral. Emails between Mrs D and the Council show the Council did not tell Mrs D what action it was taking.
31. The Council says “the Walsall Educational Psychology Service delivers a service through a consultation model of service delivery (rather than a referral model). D was raised with Walsall Educational Psychology Service for consultation by the SEN team in January 2019. Through consultation it was agreed that the priority was to support D to reintegrate into an educational setting. It was agreed that an Educational Psychologist would attend the Annual Review which took place in May 2019.” I note the Council has not provided any evidence to the Ombudsman to show the referral, consultation, or decision making referred to.
32. On the balance of probabilities, the Council did not deal with the educational psychologist referral as it said it would. This is fault by the Council. After it met with Mrs D in January it should have updated her about action being taken. There was no injustice to Mrs D because the annual review named Mrs D’s preferred college in the EHCP, the educational psychologist did not object to the EHCP and Mrs D accepted it.

Transition planning

33. The annual review of A’s SSEN in December 2015 shows a transition plan for Year 11 was in place. There is no information about where A would attend after leaving school. Minutes of the annual review in July 2016 show that A’s transition to college X was discussed at the review meeting. Details were provided about how college X would support A but no formal transition plans were recorded. The EHCP completed in September 2016 named college X and also the course A wished to follow. The EHCP stated a comprehensive transition plan was required as well as support for A leading up to a transition to college.
34. The Council did not review or amend A’s SSEN/EHCP before 31 March in the calendar year of his transfer to post 16 provision.
35. The July 2017 EHCP named college Y. This was issued to reflect the fact that A’s placement at college X had broken down. It was not possible for the Council to complete this earlier.
36. The Council’s annual review in May 2019 was delayed and was not completed within five months of A’s start date at college Z, where he currently attends.
37. The Council did not comply with statutory guidance. This is fault by the Council. Transition planning for A was delayed.

Mrs D’s complaint

38. Mrs D complained by email on 22 January 2019. The Council provided a response at stage 1 on 28 January, within the 10 days timescale in its complaints process.
39. Mrs D asked for her complaint to be escalated on 7 February. The Council says it responded by continuing a dialog with Mrs D. Mrs D chased her complaint on 1 April 2019. The Council provided an email response the same day, a formal response by letter on 22 July and a further response by letter on 26 July.
40. The Council did not comply with its complaints process. The Council agrees that it did not always respond to Mrs D’s emails in a timely fashion and she has sometimes had to chase up a response. I note Mrs D had to complain to her MP and the Ombudsman before the Council responded fully. This is fault by the Council. Mrs D had to spend additional time and energy making her complaint.

Agreed action

41. To remedy the injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Mrs D and A for the fault I have identified.
• Pay £4600 to A in recognition of his lost SEN provision. This is based on a total loss of 11 ½ months, (three and a half months between September 2016 to January 2017 and eight months between November 2018 to July 2019), accounting for school holidays. Given A’s difficulties, I consider £400 per month of loss to be an appropriate remedy. A can use this for his educational benefit to ensure he catches up, as far as possible, on provision he missed out on.
• Pay £250 to Mrs D for the time and trouble in making her complaint.
• Ensure all SEN staff are reminded of the need to comply with timescales set out in the SEN Code of Practice.
42. The Council has also said it will review its approach to decision making and recording in relation to requests for Educational Psychologist involvement.

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Final decision

43. I have found there was fault by the Council because it did not deal with an EHCP annual review properly, delayed transition planning for A, failed to provide for A’s SEN needs and did not follow its complaints procedure. Mrs D was unable to appeal to tribunal about A’s EHCP in 2018 and A missed significant education provision he was entitled to.
44. There was also fault by the Council because it did not deal with a referral to an Educational Psychologist properly. This did not cause any injustice to A or Mrs D.
45. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman