Summary: Ms X complained the Council has not adequately met her children, D and E’s special educational needs. The Council failed to plan ahead for their transition to adulthood or consider how D and E would be supported to continue to access training or education until their 18th birthdays. It also failed to properly implement the recommendations from its investigation of her complaint. It has agreed to pay Ms X £500 for uncertainty arising from the identified faults, complete the actions it promised to and review its practice to avoid reoccurrence of these faults.

The complaint

1. Ms X complains the Council has not adequately met her children, D and E’s special educational needs, including through personal budgets.
2. She says it wrongly stopped maintaining their plans when they reached 16 years old, despite them still being in full time education. This means that, although she has since moved away from the Council’s area, she has lost the ability to use up to date information to help inform appropriate support for her children.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. Some of Ms X’s complaint is about her dissatisfaction with the Council’s support for D and E’s special educational needs over several years. This includes her concerns about the adequacy of D and E’s Education, Health and Care plans and reviews since 2017. I have only investigated the Council’s actions during and since 2019. This is because Ms X had the chance to formally complain to the Council and us sooner about earlier matters. It would have been reasonable for her to do so.
6. 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)
7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
8. The Council told Ms X she could appeal its decision to end her children’s EHC plans to the Tribunal. However, I have exercised my discretion to investigate this part of her complaint because the Council’s subsequent correspondence was potentially unclear and confusing as I explain below.
9. 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.
10. 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

11. I considered the Ombudsman’s guidance on running a complaint system.
12. I spoke to Ms X about the complaint.
13. I considered non statutory guidance – Elective Home Education (2019), Statutory guidance on Participation of young people in education, employment or training (2016), SEND 19-25 year olds’ entitlement to EHC plans (2017), SEND Code of Practice 0-25 years.
14. I gave the Council and Ms X the opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and policy background

Special Educational Needs

15. An Education, Health and Care (EHC) plan is for children and young people aged up to 25 years old who need more support because of their special educational needs. EHC plans identify educational, health and social needs and set out the additional support the Council decides is necessary to meet those needs.
16. A council can decide to stop maintaining a young person’s EHC plan only if it decides the plan is no longer necessary for them. For a person aged 19 or over, the Council must take account of whether the education or training outcomes specified in the plan have been achieved. Councils cannot cease the Plan just because the young person is 19 or over.
17. The courts have said that many young people may need an EHC plan after 19, not just those who are still studying for qualifications. Therapies and small achievements could justify an EHC plan continuing.
18. If a council decides to end a young person’s EHC plan there is a right of appeal to the Special Educational Needs and Disability Tribunal (SEND). We would expect someone to use this right and will not normally investigate a complaint when someone could have done so.
19. The Ombudsman can look at faults in the EHC assessment process and complaints about whether provision set out in an EHC plan has been put in place. We cannot challenge or change the contents of an EHC plan.
20. A special educational needs (SEN) personal budget is an amount of money identified by the council to deliver provision set out in the EHC Plan. It can identify some parts of this provision which can be made using direct payments.

Elective home education

21. Parents can choose to educate their children, including children with SEN, at home. Councils should work with parents to ensure that the special educational needs of these children are met. Where the council and parents agree that home education is right for the child, the plan should say they will be educated at home. This is called ‘elective home education’. The council must then work with parents to arrange special educational provision set out in the plan.
22. Young people over compulsory school age can also be educated at home to meet the national requirement for them to stay in education or training until the age of 18. Councils should involve parents in annual reviews of EHC plans of such home educated young people who are over compulsory school age.
23. This Council’s policy is that when home educated children become older than compulsory school age it will ask them whether they want to continue in education. It encourages them to do so and supports them to look at options.

Compulsory school age and raising the participation age

24. Compulsory school age for home educated children is usually up to the end of the normal school year in which their 16th birthday occurs. However, since 2016, all young people have had to continue in some form of education or training until at least their 18th birthday.
25. Councils must make available to young people with SEND what support they consider necessary to encourage, enable or assist the young person to take part in education or training until the young person reaches 25 years old.

Planning for transition to adulthood

26. Councils must ensure young people moving from support from children’s services and education have a smooth transition to support from adult care services. Government guidance says it is important to help young people think about their aspirations as early as possible, including setting stretching and ambitious outcomes.
27. For young people with an EHC plan, preparation for transition to adulthood must begin from year 9 (age 13-14). Transition planning at this early stage must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, going into work, career planning, financial support, accommodation and personal budgets where appropriate.
28. The transition assessment should be undertaken as part of one of the annual statutory reviews of the EHC plan. Councils must ensure that the EHC plan review at year 9 and every review thereafter includes a focus on preparing for adulthood.

Complaints process

29. The Council’s corporate complaint process has two stages. Its policy says the second stage, review by a senior manager, should take up to 30 working days from the review request. The written response should be sent from a Director, on behalf of the Council, who should confirm it is the full and final response.
30. The Ombudsman expects council complaint systems to be clear, timely and responsive. We expect councils to ensure any decisions reached by their investigation to be properly and promptly implemented.

Background

31. Ms X has twins with learning disabilities and autism. Both twins (D and E) had Statements of Special Educational Need and then Education Health and Care (EHC) Plans from the Council throughout their childhood.
32. The EHC plans that were current during the period covered by my investigation said D and E were being electively home educated. The plans said that the special educational provision required by D and E would be met by the home education setting. During 2019, D and E reached 16 years old. Section J of their Plans – Personal Budget said that no request for a personal budget had been made.

What happened

33. In November 2018 the Council wrote to Ms X to say it planned to hold an annual review of their EHC plans at the family home. The Council held the annual reviews for both D and E’s EHC plans in January 2019.
34. The Council decided not to amend their EHC plans. The unamended plans it sent, after the annual review, cover D and E’s educational outcomes to the end of Key Stage 4 (age 16), later that year. They state their social care needs were met by the family.
35. The Council wrote to Ms X in April 2019 to say that, following the reviews, it understood D and E would stop being home educated at the end of summer term 2019 (when they were 16 years old) and would not then engage in further learning, apprenticeship or higher education. The Council said it would therefore stop maintaining their EHC in July 2019.
36. The Council’s letter gave contact details for advice and support about this decision, including the option of mediation. It said Ms X could appeal to the SEND Tribunal about the Council’s decision to end the plans, giving details about how to do this. It explained that if Ms X wanted to appeal to the Tribunal about the decision to end the plans, she could also ask the Tribunal to consider any concerns she had about the social care parts of the plan.
37. Ms X complained to the Council about the situation. She did not appeal to the Tribunal. Meanwhile the Council had written to all home educating parents, including Ms X, in April 2019, to say the change in law (dating from 2016) meant young people would need to remain in education or training until they were 18 years old. It asked Ms X to tell it what her intentions were.
38. Ms X told the Council that D and E would continue getting full time home education until they reached 18 years old. The Council wrote to her in late April to say, in light of this, it would change its earlier decision and maintain D and Es EHC plans while they stayed in home education.
39. The Council replied to Ms X’s complaint at stage 1 in April 2019. It said since the reviews it had changed its decision and would maintain the EHCPs for both children. It would start to work with Ms X to prepare for when D and E became adults. It had allocated a transition social worker to help plan for the future.
40. In early May Ms X asked the Council to consider her complaint at stage 2. She explained concerns about the adequacy and absence of EHC plans since 2017. She said the Council had sent contradictory letters and information about ending and continuing to maintain the plans.
41. Ms X chased up the Council for a response several times over following months. The Council explained it was taking longer than expected to find a senior officer to carry out the review.
42. The Council replied to Ms X’s complaint at its final, second stage in August 2019. It said the stage 1 complaint had not properly dealt with Ms X’s concerns about past practice regarding EHC plans since 2017. It recommended the children’s services department:
• Explain how EHCPs for 2017 – 2019 had been achieved with a timeline showing when reviews had been undertaken for 2017, 2018 and 2019 with copies of plans.
• Assure Ms X that D and E had not missed out on services or finances such as personal budgets since 2017.
• Explain when reviews would take place for 2019 onwards, including which officer would be the lead contact.
• Apologise and meet Ms X to discuss the situation and her concerns.
43. The Council said learning from the complaint showed it did not have a clear policy on home educated SEND children. It needed to remind staff about Government advice on raising the participation age.
44. Ms X told me the Council had not taken any of these actions or contacted her again about them. She explained that she had since moved out of the Council’s area. She needed EHC plans as a reference for the new council to help get the right support for D and E.
45. She said that she had asked for extra funding and help at each annual review over previous years, but Council officers had told her budget pressures meant this was not available. She said evidence from other councils showed they provided funding through direct payments to cover the sort of needs D and E had.
46. The Council, in its response to my enquiries, confirmed it had no record of taking any of the actions it said it would in its final complaint response.

My Findings

Events before 2019

47. In her complaint to the Council, Ms X expressed concerns about the adequacy of past EHC plans and the lack of financial support arising from those plans. I have not investigated this further for the reasons set out in paragraph 5. Ms X could have complained to the Council and then the Ombudsman sooner about these concerns. Based on correspondence I have seen from 2019, the Council is likely to have advised Ms X of her right to appeal to the SEND Tribunal about earlier decisions, including refusal to amend EHC plans following reviews or refusals to reassess plans.
48. However, the Council, in its final complaint response, committed to explaining to Ms X how those earlier plans had been achieved, share the outcome of reviews with her, and to clarify the situation regarding personal budgets. It has not done so which is fault causing distress and uncertainty.

Council actions following the January 2019 annual reviews

49. The Council’s letter to Ms X telling her its decision to stop D and E’s plans when they reached 16 years old gave her the right to appeal this decision to the Tribunal. We would therefore not normally investigate this further as it was reasonable for Ms X to use this right. However, given the subsequent mixed messages set out in the Council’s correspondence about this decision, I have investigated and made findings on this.
50. Evidence provided by the Council does not show that it considered whether the special educational outcomes required by D and E’s plans had been achieved. It did not consider how D and E would be supported to continue to access, as the law requires, training or education until their 18th birthdays. It did not consider what, if any, support D and E required to continue to meet their SEN up to the age of 25.
51. There is also no evidence the Council properly considered planning for D and E’s transition into adulthood. It said it would appoint a transition support worker in 2019 but, by then, it should have been planning for this at for least three years, from when D and E were 13. Although they were being home schooled this probably increased the importance of transition planning. This is because Ms X was without the support a school might otherwise have provided for this.
52. Since the Council reversed its decision to end the plan and, as, by then, Ms X had moved out of the Council’s area, D and E did not suffer ongoing injustice from loss of service. However, the identified faults mean their new council does not have the benefit of considering current plans that that show how this Council considered, at the stage required by statutory guidance, their transition to adulthood.
53. As this fault was potentially significant for others, I asked the Council to confirm whether it had other young people with EHC plans in similar circumstances. It confirmed that it had recently ended one EHC plan for a home educated child when they reached 16.
54. It should review this case to ensure it followed the steps required by legislation and guidance. It should consider whether it met its duties in that case to carry out adequate transition planning for home educated children with EHC plans. It should also carry out the action it set out in its final complaint response – to “have a clear policy on home educated Special Educational Needs and Disabilities children”. This policy should include consideration of timely and appropriate transition planning for such children.

Complaint handling

55. The Council took too long to carry out its final complaint stage investigation of Ms X’s complaint. She asked for the review in early May 2019. She had to chase several times before it confirmed who was responsible for the review. The review took until August 2019 to complete. This is longer than the 30 working days required by the Council’s policy. This is fault.
56. The Council’s final response was completed by an operational manager from a service area not associated with the complaint. It referred Ms X to the Ombudsman. These steps were in accordance with its policy.
57. However, the response was not signed off by a Director and, more importantly, did not commit the Council to actions to remedy injustice caused by the identified fault. Instead it set out a series of recommendations for consideration by another department. These actions were then not carried out.
58. This is not an adequate final stage complaint response. It left Ms X unclear what was happening and without the promised apology, assurances and clarification for what was happening next.
59. It is possible the Council assumed that because, by then, Ms X had moved away, it did not need to carry out these actions. But it has no record of considering ending the case in this way. In any case this would not have been an appropriate conclusion because the information promised, the apology and offer of a meeting, were still relevant to injustice caused to Ms X.

Agreed action

60. Within one month of my final decision the Council has agreed to:
• Apologise to Ms X for wrongly telling her it would end D and E’s EHC plan, and for its delay and failure to carry out the actions set out in its final complaint response.
• Carry out the remaining actions set out in that response as set out in paragraph 42 above.
• Offer to help Ms X liaise with her new council if she wishes, to assist in that council’s ability to assess D and E’s needs.
• Pay Ms X £500 to remedy injustice caused to the family by the lack of transition planning.
61. Within three months of my final decision the Council has agreed to,
• Review the case it identified of a home educated young person with an EHC plan whose plan the Council ended at 16 years old. Check that this decision followed the steps required, including properly considering transition planning and take any appropriate corrective action, advising the Ombudsman accordingly.
• Check all currently home educated children with EHC plans aged 13 or over to ensure it is appropriately planning ahead for their transition to adulthood. Provide the Ombudsman with a summary table showing anonymized cases considered and corrective action taken.
• Complete the review of its policy for home educated Special Educational Needs and Disabilities children recommended in its stage two response. Provide the Ombudsman with a copy of this policy.
• Remind all officers responsible for final stage complaint reviews that where these result in recommendations, these should be promptly and properly implemented. The Council should ensure its final complaint responses should be on behalf of the whole organisation and commit to actions, not recommend other departments carry out actions.

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Final decision

62. I have completed my investigation finding fault causing injustice. The Council has agreed actions to remedy injustice to Ms X and prevent reoccurrence of the fault.

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Investigator's decision on behalf of the Ombudsman