Summary: staff shortages, staff sickness and a significant increase in demand meant the Council took more than 12 months to amend B’s Education, Health and Care (EHC) plan when he transferred to college and he did not get the support he needed. The Council has apologised, addressed the staffing issues and agreed action to address the impact of the service failure on B.

The complaint

1. Mrs M complains about her son, B's education. In particular, Mrs M complains:
1. B's Education, Health and Care (EHC) Plan was not amended before he transferred to East Riding College in September 2018;
2. the SEN Panel requested an interim review to assess B's needs in November 2018, but this was not completed, and B's EHC Plan was not amended, until September 2019;
3. as a result, Mrs M says B did not get the support he needed during his first year at college.

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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. I have considered:
• information provided by Mrs M;
• information provided by the Council, including its response to Mrs M’s complaint.
5. I invited Mrs M and the Council to comment on my draft decision.

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What I found

6. Mrs M’s son, B, has an Education, Health and Care (EHC) Plan maintained by the Council.
7. He was a pupil at an Enhanced Resource Unit until July 2018 where he received one-to-one support.
8. In September 2018, B transferred to College for his post-16 education.
9. Mrs M requested one-to-one support for B at College. The Council's SEN Panel considered her request in November 2018 and decided to call an interim review to reassess B's needs.
10. B's amended EHC Plan was issued on 30 September 2019.
11. Mrs M complained to the Council about the delays amending B’s EHC Plan. The Council upheld Mrs M’s complaint and apologised for the delays. The Council explained that at the time B transferred to college, the SEN service was experiencing difficulties due to staff sickness and vacancies, and there had also been a significant increase in the number of requests for EHC assessments.
12. Mrs M remained dissatisfied and complained to the Ombudsman.

Education, Health and Care Plans: the law

13. A young person with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the young person’s special educational needs and the provision required to meet them.
14. The procedure for assessing a young person’s special educational needs and issuing an Education, Health and Care Plan is set out in legislation and Government guidance.
15. A Plan should name the school or college, or type of school or college, the young person will attend. Councils must consult with schools and colleges before naming them in a young person’s Plan.
16. Councils must review EHC Plans every 12 months. From Year 9, the reviews must include a focus on preparing for adulthood. This includes identifying post-16 pathways.
17. When a young person moves from school to college, the Council must review and amend their EHC Plan by 31 March ready for a transfer to college in September.

What happened

18. The Council sent me the papers from the November 2017 annual review of B’s EHC Plan. This was the final annual review before he transferred to post-16 education. The papers record detailed and constructive transition planning ahead of B’s transfer. B wanted to join the sixth form at his school. The Council advised he should have a ‘plan B’ in case he did not get the grades he needed in his exams or the subjects he wanted were not available.
19. It does not appear the Council amended B’s EHC Plan following the review. As B intended to stay at school, it was possibly not necessary for the Council to amend his Plan.
20. B was not, however, able to join the sixth form at school. In late August, his plans changed and he decided he would attend college instead. At this point, the Council should probably have held a review of B’s EHC Plan. Time was of the essence since B was about to start college. B has a high level of need and the Council should probably have been involved in commissioning his support. The Council needed to act quickly.
21. Unfortunately, the Council was unable to respond. The Council has explained that staff shortages, staff sickness and a significant increase in demand left the SEN team unable to respond. The SEN Panel recognised the need to review B’s EHC Plan in November 2018, but the review was not completed, and B’s plan was not amended, until the end of September 2019. This was a ‘service failure’.

Agreed action

22. Where we find fault, or service failure, we consider the impact on the person concerned. If we find it caused them an injustice, we may recommend a remedy. We have published guidance to explain how we recommend remedies. Our aim is to put the person back in the position they would have been in if the fault or service failure had not occurred. We may also recommend a symbolic payment to recognise the disruption caused.
23. The Council said it agreed funding for B’s support at a Panel meeting on 23 August 2019 and informed the college the funding would be backdated to September 2018.
24. This does not appear to have helped B. Mrs M tells me B did not receive the support he needed during his first year at college. She says he made little progress overall, and no progress with his independent learning skills.
25. The Council is not only responsible for funding the support B needs at college. Case law has established councils owe a personal and non-delegable duty to arrange the support in an EHC Plan.
26. I have not seen any evidence the Council arranged support for B in his first year at college. Unlike the funding agreed in August 2019, the Council could not ‘retrospectively’ arrange the support in his delayed plan.
27. B’s lack of support and subsequent lack of progress at college is an injustice caused by the service failure. When his plans changed in August 2018 and he decided to go to college, the Council should have quickly reviewed and amended his EHC Plan, arranged the necessary funding and ensured he received the support in his EHC Plan.
28. Although B continued to attend college, it appears he did not make the progress he could have expected. This was no doubt a frustrating experience for B and Mrs M, too.
29. Mrs M and B have helpfully suggested that additional one to one sessions with a learning support advisor at college to support B in developing his independent learning skills would be useful. This will work towards returning B to the position he would have been in if the service failure had not occurred.
30. In addition, I recommended the Council make a symbolic payment of £500 to Mrs M and B to recognise the disruption to B’s education, and the frustration this caused them both.
31. I recommended the Council make the payment and arrangements for additional one to one sessions within one month of my final decision. The one to one sessions should be planned in agreement with Mrs M and B, and the college.
32. The Council accepted my recommendations.

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Final decision

33. The Council has accepted my recommendations, so I have ended my investigation.

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Investigator's decision on behalf of the Ombudsman