Summary: the Council delayed transferring Mr B’s daughter’s statement of special educational needs to an education, health and care plan, delayed carrying out updated assessments, delayed carrying out an annual review, failed to share the education, health and care plan or information about high needs funding with the college, delayed completing a social care assessment and delayed responding to a complaint. As a result Mr B’s daughter missed out on special educational needs provision between 2017 and 2019 and Mr B had to go to time and trouble to pursue his complaint. An apology and a financial payment is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council:
• delayed transferring his daughter’s statement of special educational needs to an education, health and care plan (EHCP);
• delayed providing the college with a copy of the education, health and care plan or information about the higher needs funding the Council had awarded;
• delayed securing updated assessments;
• delayed completing a social care assessment; and
• delayed responding to his representative’s complaint.

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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. 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

4. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
5. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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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What I found

Relevant legislation and guidance

7. The Children and Families Act 2014 said all children with a statement of special educational needs were due to transfer from their existing statements to an EHCP by April 2018. The maximum time for a Council to conclude a transfer review to replace a statement with an EHCP was 18 weeks following a two week notice period.
8. Parliament issued statutory guidance on the transfer process. This said a statement could only be transferred to an EHCP following a transfer review which comprised an assessment. In conducting the transfer review the Council had to:
• provide two weeks' notice of the transfer review (assessment);
• undertake an EHC needs assessment; and
• ensure that the child's parents of the young person were invited to a meeting to contribute to the transfer review before the EHCP was finalised.
9. The Special Educational Needs Code of practice (SEN code) says all school and academy sixth forms, sixth form colleges, further education colleges and 16-19 academies are provided with resources to support students with additional needs, including young people with SEN and disabilities.
10. The SEN code says those institutions receive an allocation based on a national funding formula for their core provision. They also have additional funding for students with additional needs, including those with SEN.
11. The SEN code says colleges are not expected to meet the full costs of more expensive support from their core and additional funding in their main allocation. They are expected to provide additional support which costs up to a nationally prescribed threshold per student per year. The responsible local authority should provide additional top-up funding where the cost of the special educational provision required to meet the needs of an individual young person exceeds the nationally prescribed threshold.
12. The SEN code says EHCP’s should be reviewed by the local authority as a minimum every 12 months. The same provision was in place for reviewing statements of special educational need.
13. The SEN code says the local authority must gather advice from relevant professionals about the child or young person’s education, health and care needs, desired outcomes and special educational, health and care provision that may be required to meet identified needs and achieve desired outcomes. It says if the child or young person is either vision or hearing impaired, or both, the educational advice and information must be given after consultation with a person who is qualified to teach pupils or students with these impairments.
14. The SEN code says the final EHCP must be issued to the governing body, proprietor or principal of any school, college or other institution named in the EHCP.

Background

15. Mr B’s daughter has a hearing impairment and some physical disabilities. From 2013 Mr B’s daughter had a statement of special educational needs. The Council held a conversion review meeting in October 2016 to move the statement to an EHCP. The meeting recorded the following actions as necessary:
• to undertake, by spring 2017, an up-to-date educational psychology assessment to investigate the daughter's verbal and non-verbal cognitive functioning;
• to complete, by the end of the Autumn term 2016, an up-to-date speech and language therapy assessment to find out the underlying difficulties the daughter has and to offer one-to-one sessions if needed to address those difficulties;
• complete an up-to-date physio assessment to establish needs and any equipment needed, along with a home assessment; and
• to carry out a full occupational therapy assessment.
16. Mr B transferred his daughter to a new college in October 2017. The Council was not involved in that move and did not know about it until the college approached the Council for extra funding for Mr B’s daughter early in 2018. The Council agreed higher needs funding, although there is no evidence the Council told the college about that before September 2019.
17. The Council carried out an annual review in March 2018. The Council issued a draft EHCP, followed by a final EHCP in April 2018. The final EHCP named the college Mr B’s daughter was attending in section I. There is no evidence the Council sent a copy of the EHCP to the college and the college says it did not receive one.
18. An officer from the National Deaf Children’s Society began representing Mr B later in 2018. In November 2018 the representative asked for an update on the conversion of Mr B’s daughter’s statement to an EHCP.
19. Mr B contacted the Council in December 2018 to raise concerns about the lack of support for his daughter at college. Mr B told the Council the college did not have a copy of his daughter’s EHCP.
20. In December 2018 Mr B’s representative asked the Council for an updated speech and language therapy report, educational psychology assessment and a teacher of the deaf report.
21. A teacher of the deaf completed an assessment in January 2019. The assessment made various recommendations, including for Mr B’s daughter to have a full time British Sign Language interpreter to access all learning and conversations.
22. The Council received an updated speech and language report in March 2019 and an educational psychologist report in June 2019.
23. Mr B’s representative reminded the Council about the need for a social care assessment in April 2019.
24. The Council issued a proposed amended EHCP in July 2019. After considering comments from Mr B’s representative the Council issued a final EHCP in November 2019. That resulted in extra provision for Mr B’s daughter which included:
• 8 hours speech and language therapy per year including both direct and indirect work with a minimum of 4 hours direct work;
• visual support appropriate to her understanding with the overall programme delivered by a trained learning support assistant/teaching assistant 3-5 times a week individually or in a group or in an integrated setting through minimum 3-5 specific curriculum activities in the week;
• staff to be trained in using visuals to support communication and supporting vocabulary development;
• opportunities to consolidate and extend British Sign Language skills to level 2;
• a peer group in college where sign is the primary mode of communication or is fully integrated into teaching and learning within the classroom;
• full-time British Sign Language interpreter during taught learning sessions and to support access to social conversations with hearing peers;
• subtitles for video and audio information in lessons;
• individual and small group teaching to develop strategies to support memory and retention of new signs and written language;
• careers advice individualised to meet the needs of deaf young people;
• a college-based programme of study where key elements of the course include vocational skills in an area relevant to Mr B's daughter’s interests and life skills including diary management and personal finance;
• intervention focused on learning self-help strategies such as using assistive technology;
• an acoustically favourable environment where the noise levels are within acceptable standards for hearing impaired pupils;
• staff to be aware of her seating position, check her understanding; full-time British Sign Language interpreter to access all learning and social conversation.
25. In 2020 the Council completed a social care assessment which resulted in it awarding transport to and from college three days a week. That was to begin from 20 April 2020.

Analysis

26. The Council accepts there was unreasonable delay completing Mr B’s daughter’s transfer to an EHCP. Conversion of the statement of special educational needs to an EHCP began on 6 October 2016. The Council should have completed the plan within 20 weeks. The Council did not meet that deadline as it did not issue the final plan until April 2018. That delay is notable and is fault. I am concerned about the delay because the daughter’s statement in October 2016 was the same as the one in place in 2013. The October 2016 meeting also noted the information in the statement was not appropriate, the daughter’s needs were not correctly recorded and the provision in the statement would not meet the daughter’s current needs. It is also clear many of the expert reports produced for the original statement were out of date. The meeting in October 2016 recommended up-to-date reports for educational psychology, speech and language therapy and occupational therapy. Despite those recommendations none of those reports were completed until 2019. That again is fault. Given the delays that had already occurred I am also concerned the Council did not ensure the educational psychology, speech and language therapy and occupational therapy reports were completed promptly in 2018 when it drew up the EHCP. That, again, is fault.
27. I am satisfied delay completing the EHCP, coupled with the delay getting up-to-date reports, meant Mr B’s daughter likely missed out on support between 2017 and November 2019. That is when the Council produced a significantly altered EHCP with provision Mr B’s daughter had not previously received. The plan the Council produced in November 2019 was more specific and comprehensive about the provision for a deaf person, as outlined in paragraph 24. I consider it likely that was due to the Council involving a teacher for the deaf in 2019 and due to the updated reports. I consider the Council should have completed those reports promptly following the October 2016 review and, if it had done so, it is likely the more detailed provision included in the November 2019 plan would have been in place earlier.
28. I understand the Council has reviewed its annual review process for special educational needs. As part of that a management panel will consider all cases where recommendations are made as part of a review. The Council also monitors decisions to ensure the actions are completed. I welcome that. I have taken into account the time involved, the fact the college put in place some extra support when Mr B’s daughter moved there in October 2017, which included a communication support worker in every lesson and a tutor from Deaf First since the end of November 2018. I have taken into account the fact the Council did not know of the new placement until 2018, and therefore had no reason to send the college a copy of Mr B’s daughter’s statement in 2017. I have also taken into account the fact the Council delayed completing an annual review in October 2017 which, if it had been completed on time, would likely have identified the change in placement and the need for updated assessments. I consider the delays, failure to follow through on the reports identified as necessary at the October 2016 review and failure to review in October 2017 affected the provision Mr B received in 2018 and 2019.
29. Mr B says the Council failed to carry out any transition planning for college and failed to provide the college with a copy of his daughter’s EHCP. Mr B is referring here to when his daughter transferred to college from her sixth form placement in October 2017. The evidence I have seen though satisfies me Mr B and his wife arranged that transfer as his daughter was not happy following the first year of her sixth form placement. That was at her assigned school and the school named on her statement of special educational needs. There is no evidence the Council knew of the decision to move to the new college until February 2018. In those circumstances I do not consider the Council had any opportunity to carry out transition planning for Mr B’s daughter. I therefore do not criticise it for that.
30. I am concerned though when the Council became aware of Mr B’s daughter’s placement at the new college in 2018 it did not arrange for a teacher of the deaf to visit the college until January 2019. I consider it should have been clear to the Council both that updated reports were required to enable the college to provide suitable support to Mr B’s daughter and that this would involve an assessment by the a teacher of the deaf. Failure to arrange that in 2018 is fault and again delayed provision to Mr B’s daughter which would have made her time at college easier.
31. Mr B says failures by the Council meant the college at first placed his daughter in a group to study Maths and English before realising that she needed support from the supported learning unit. Mr B says because of failures by the Council the college changed his daughter’s timetable four times. I recognise Mr B’s daughter had a difficult time at college at first. However, as I said earlier, I am satisfied the move to college did not involve the Council and I therefore cannot criticise it for any lack of information provided to the college before March 2018. I consider the Council at fault though for not sending the final EHCP to the college in April 2018 and for not telling it about the higher level finding awarded until September 2019. That, plus the failure to update reports until 2019, likely affected the provision Mr B’s daughter received.
32. Mr B says his daughter’s EHCP identifies specific English and Maths goals and outcomes. Mr B says she has not received any support to enable her to progress towards the outcomes. I am satisfied though the educational psychology report completed in 2019 recorded Mr B’s daughter’s progress with English and Maths, referring to her individualised teaching programme. I am therefore satisfied the college put provision into place to support Mr B’s daughter in achieving her English and Maths goals.
33. Mr B says the Council failed to complete a social care assessment for his daughter. The evidence I have seen satisfies me Mr B’s representative asked the Council to assess Mr B’s daughter for social care support early in 2019. The Council did not complete that assessment until 2020. That delay is fault. The assessment decided Mr B’s daughter needed support with transport to and from college three days a week. When the Council had completed that assessment the colleges had closed due to COVID-19. Delay completing the assessment means Mr B’s daughter missed out on support for transport to college between 2019 and 2020.
34. Mr B says the Council delayed responding to his representative’s complaint. The evidence I have seen satisfies me Mr B’s representative put in a complaint in February 2019, which the Council acknowledged receipt of in March 2019. At that point the Council said it would invite the family to a meeting to discuss and resolve the concerns. I have seen no evidence the Council arranged that meeting until October 2019. That delay is fault and led to Mr B having to go to time and trouble to pursue his complaint.
35. So, I have found fault as the Council delayed reviewing Mr B’s daughter’s statement of special educational needs and transferring it to an EHCP between October 2016 and March 2018. The Council failed to ensure the recommendations from the October 2016 review were followed up promptly, particularly in relation to getting updated assessments. The Council then delayed carrying out a further review until 2018 and cannot demonstrate it provided the college with a copy of Mr B’s daughter’s EHCP or information about increased funding until 2019. Those faults meant Mr B’s daughter missed out on provision between 2017 and 2019. The Council also delayed completing a social care assessment which meant Mr B’s daughter missed out on transport assistance to college for around a year. Given the significant differences between the statement of special educational needs in place in 2016 and the provision in the EHCP following the production of up-to-date reports and taking into account the lack of transport provision between 2019 and 2020 and the time and trouble Mr B has had to go to pursuing the complaint, I recommended the Council apologise to Mr B and his daughter and pay them £1,500 to reflect the lost provision. The Council has agreed to that.

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Agreed action

36. Within one month of my decision the Council should apologise to Mr B and his daughter and pay them £1,500.
37. The Council has reviewed its annual review process for special educational needs. As part of that all cases where recommendations are made as part of a review are considered by a management panel. The Council also monitors decisions to ensure the appropriate actions are completed.

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Final decision

38. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman