Summary: Mrs X complained the Council delayed finalising her son, Y’s, Education, Health and Care Plan. The Council was at fault as it delayed ensuring Y’s care and health needs were accurately reflected in his Education, Health and Care Plan and delayed making provision to meet his personal care needs. Y did not miss education because Mrs X met Y’s personal care needs to ensure he could attend college. It has agreed to apologise and pay her £3000 to acknowledge the personal care and support she provided to Y at college. It has also agreed to review its procedures to ensure it complies with its duties regarding post 16 Education, Health and Care Plans.

The complaint

1. Mrs X complains the Council has delayed finalising Y’s Education, Health and Care (EHC) plan. It has failed to ensure adequate health information was included to enable him to receive the care he needed when he started college in September 2018. As a result, Mrs X has had to provide health support and personal care for her disabled son at college, as required.

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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 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. 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) 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)

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How I considered this complaint

6. I have considered information supplied by Mrs X and have spoken to her on the phone. I have considered the Council’s response to my enquiries and the relevant law and guidance.
7. I gave Mrs X and the Council the opportunity to comment on a draft of this decision.
8. Under our information sharing agreement, we will share the final decision on this complaint with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

9. Y is a disabled young person with special educational needs and an Education, Health and Care (EHC) Plan. He also has medical needs. He attended a special school 30 miles from his home until July 2018. From September 2018, he attended a mainstream post-16 college.

Education, Health and Care Plans

10. A child with special educational needs may have an Education, Health and Care (EHC) plan. This is a legal document which sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections.
11. If parents or a young person disagree with the content of the plan or the proposed placement they can appeal to the Special Educational Needs (SEND) Tribunal. We cannot direct changes to the sections about education or name a different school or college. Only the tribunal can do this.
12. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider the plan. We will not usually substitute our judgement for the judgement of professionals.
13. 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 has been delays in the process.
14. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to ensure special educational provision in an EHC plan is available.
15. For children and young people with EHC plans, discussion about post-16 options will be part of EHC plan reviews from Year 9. Reviews from this time onwards must include a focus on preparation for adulthood. For health care provision specified in the EHC plan, the relevant Clinical Commissioning Group must ensure that it is made available to the child.
16. Where a student has an EHC Plan, the Council must review that plan as a minimum every twelve months, including a review of the student’s support. When transferring between phases of education an EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education. For young people moving from secondary to a post-16 institution or apprenticeship, the Special Education Needs and Disability Code of Practice sets out that 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. The Special Educational Needs and Disability Regulations 2014 (the regulations) state the council must, where necessary, amend the plan so that it names the school, post-16 or other institution or type of school or institution, which the child or young person will attend following the transfer.
17. Where a council requests the cooperation of another body to get advice or information to include in an EHC plan, the body must comply within 6 weeks.
18. Once an educational setting has been identified or requested, the council must consult that setting before naming them in the EHC plan and the institution should respond within 15 calendar days.
19. When changes are suggested to the draft EHC plan by the young person or their parents and are agreed by the Council, the draft plan should be amended and issued as the final EHC plan as quickly as possible. When changes are not agreed the Council may still proceed to issue the final EHC plan. The Council must notify the young person or their parent of the right to appeal to the Tribunal and the time limit for doing so.

What happened

20. Between 2014 and 2018 Y attended a special secondary school. He has an Education, Health and Care plan and received support for his personal care and medical needs from trained staff at the special school.
21. Y was due to leave secondary school in July 2018. In January 2018 Mrs X identified a course Y wished to pursue at College 1, a mainstream college. The Council considered a local college, College 2, may provide a similar course and if this was the case it would not offer transport to College 1 as College 2 was nearer to their home.
22. On 29 March 2018 the Council issued Y’s amended final EHC Plan. This stated Y would ‘transfer to post 16 provision from September 2018’. Mr and Mrs X complained to the Council as this did not include a named placement from September 2018. Under education placement from September 2018 the plan stated ‘placement to be confirmed’. Under health care needs the EHC plan noted Y received a continuing care assessment in June 2016 which recommended 7 hours to support his social care package funded by the health authority. It set out ‘liaison with school and tertiary hospitals to help implement medical management plans in education setting to manage [and listed Y’s medical needs].’
23. Under the health provision section (section G), the plan listed four outcomes for Y to achieve but under timescales it stated ‘awaiting further information from health’. In terms of the support required to meet the outcomes the plan stated the teaching assistant in school provided full support.
24. The plan stated Y received 7 hours per week direct payments with an additional 10 hours per week out of term time for Y to promote his social inclusion and develop his independence with personal care needs. Under section I: Education placement the plan named Y’s current secondary school ‘with transfer to post 16 provision from September 2018’.
25. Y was offered a place at his preferred college, College 1. The Council established the course offered at College 2 was different and not accessible. In late April 2018 the Council confirmed Y’s College 1’s course was the only suitable course on offer and it was happy to name this in Y’s EHC plan. It carried out an ‘environmental audit’ of College 1 in May 2018 to establish if it was accessible for Y.
26. The Council wrote to Y in August 2018. It amended his EHC plan to name College 1. It also attached Y’s ‘health passport’ listing his health needs.
27. In August 2018 College 1 contacted the Council to request a meeting. It had concerns around information in the EHC Plan and Mrs X had raised concerns with it about the support Y required and the contents of the EHC plan.
28. Y started at College 1 in September 2018. He had full time learning support assistants in place. However, he did not have support to meet his personal care needs. Mrs X provided this support, as required, by waiting at the college for the three days a week Y attended.
29. In September 2018 the Council met with College 1 to discuss how Y’s personal care needs could be met. Following this the Council and college agreed to using an agency to support Y to meet his personal care needs during the three days a week he attended college. The Council agreed to ensure the college was funded appropriately to provide the support. The college arranged health professionals to provide the specialist training needed for care staff to meet Y’s needs.
30. The care agency staff started working with Y in November 2018. Mrs X says Y did not get on with one of the two members of staff and the agency had difficulties in recruiting alternative carers. Mrs X provided Y’s personal care support for one day a week throughout the remainder college year. The care agency provided the support for the remaining two days.
31. In March 2019 the Council issued an amended EHC plan. This noted Y needed ‘trained, experienced, consistent staff to provide supporting supervision to complete personal care tasks’. It referred to a care plan being in place with advice from health to ensure Y’s medical and personal care needs were met in college. This included 13 hours support per week in term time and 17 hours support out of term time to assist Y with personal care and accessing the community. Mrs X requested this was amended so it clearly stated Y needed 1:1 support for his personal care needs, which the Council agreed.

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Findings

32. The Council issued Y’s final EHC Plan in March 2018 in line with the timescales required. However, this did not name the educational setting or the type of institution Y would attend from September 2018. It only stated Y would attend post-16 provision. The regulations state the Council should name the college or the type of school/institution. The code sets out that the Council must specify the post-16 provision and name the college by 31 March. In this case the Council did not name the college or the type of institution Y was to attend and this is fault.
33. The Council confirmed Y’s college placement in April 2018 and Y started at the college in September 2018 and so did not miss out on any education provision because of this. However, Y and Mrs X missed out on having sufficient time to properly prepare for the transition to the college.
34. Mr and Mrs X were unhappy with the care and health needs set out in the EHC Plan and the Council agreed to work with them to amend it. There was a lack of clarity of Y’s health and care needs in the EHC Plan and this is fault.
35. The Council should have requested and obtained sufficient information from health and social care to enable it to include it in the EHC plan by deadline of 31 March 2019. The statutory Code of [practice explains “An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution”.
36. The Council previously understood Y was relatively independent with his personal care needs but acknowledge Y attended a special school at the time and he had trained support around him. The Council’s failure to ensure appropriate care and support was in place when Y transitioned from secondary to post 16 provision, in September 2018, was fault. The Council’s delay in finalising information about his health and personal care needs and naming College 1 in the EHC plan by 31 March had a direct impact on this. It was not until August that College 1 became concerned about its ability to meet Y’s support needs. This did not leave sufficient time for planning for and commissioning support at College 1.
37. Y did not miss out on education because of the lack of personal care and support because Mrs X met Y’s personal care needs for the three days a week he attended college between September until November 2018, when the care agency started, to ensure he could attend his education provision set out in his EHC plan.
38. The care agency found staff to cover Y’s personal care package from November 2018. Y did not get on with one carer so the agency covered Y’s care needs for two out of his three college days. The agency is still trying to recruit an additional member of staff but the delay in meeting the care package is fault. This fault led to Mrs X meeting Y’s personal care needs on the third day at college and she has done so throughout the school year.
39. Mrs X has raised further issues with some of Y’s health provision set out in the plan and that Y has unmet health needs. Some of the areas of concern she has identified relate to health needs and do not directly relate to meeting Y’s educational needs. If Mrs X remains unhappy with Y’s health provision it is open to her to complain to the health service in the first instance and then to the Parliamentary and Health Service Ombudsman.

Agreed action

40. The Council has agreed, within one month of the date of this decision, to apologise to Mrs X and pay her £3000 to acknowledge the care support Mrs X provided to Y at college from September 2018 to July 2019 (three days a week for the first half term and one day a week for the rest of the year).
41. The Council has agreed, within two months, to:
• remind staff of the need to ensure EHC plans for post 16 provision are amended by 31 March. This should include the name of the provision and ensuring relevant health and social care advice is included within the plan by this date.
• ensure it has relevant quality monitoring systems in place to comply with its duty to review and amend post 16 plans by 31 March.
42. The Council should provide the Ombudsman with evidence to show it has carried out these actions.

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Final decision

43. I have completed my investigation. There was fault causing injustice which the Council has agreed to remedy

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Investigator's decision on behalf of the Ombudsman