Summary: The Council was at fault when it delayed consulting on a potential post-16 educational placement for the complainant’s son. The Council was also at fault for a general delay in planning his transition to post-16 education. It cannot be said, on the evidence, this made a substantive difference to his situation, but the delays caused frustration to the complainant, and the Council has agreed to offer a financial remedy for this. The Council has also agreed to ensure its post-16 transition planning processes are adequate to adhere to the Code of Practice.

The complaint

1. The complainant, to whom I will refer as Mr D, says the Council delayed the process of post-16 transition planning for his disabled son, to whom I will refer as P. As a consequence, the college placement Mr D wished for his son was no longer available, and a suitable alternative full-time placement was not arranged by the time he was due to start college in September 2019.

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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. 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)
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)

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How I considered this complaint

6. I reviewed the Council’s correspondence with Mr D, a chronology of key events provided by the Council, and a selection of P’s Education, Health & Care plans.
7. I also shared a draft copy of this decision with each party for their comments.

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What I found

8. The following chronology sets out the key events relevant to this complaint. It does not cover every piece of communication between the relevant parties.
9. P is significantly disabled, and is subject to an Education, Health & Care (EHC) plan. P was due to start college in September 2019.
10. In December 2018, Mr D and his wife told the Council they had identified a college placement which they considered suitable for P. The college, to which I will refer as College 1, was in a neighbouring local authority area, Bath & North East Somerset (‘BANES’).
11. On 2 January 2019, the Council issued a final amended EHC plan for P. The plan did not name a college placement for him.
12. On 6 March, the Council asked College 1, via the SEN team at BANES, whether it could accept P in September. The Council also consulted with another college, College 2, in its own area.
13. On 18 March, College 1 responded to the consultation. It said it was already over-subscribed for September, and it could not accept P as it physically did not have the capacity to accommodate him.
14. On 20 March, College 2 also confirmed to the Council it could not take P. This was because it was due to move the transition programme he needed to a different site.
15. The Council informed P’s mother of these developments on 20 March.
16. On 31 March, Mr D made a complaint to the Council. He said the Council had failed to give reasons for not naming College 1 on P’s EHC plan. Mr D asked the Council to explain why he had not done so, and said he would consider lodging an appeal when the EHC plan was finalised.
17. On 23 April, Mr D also applied to a private mediation firm, which partially specialises in Special Educational Need matters, for a dispute resolution service.
18. The Council replied on 26 April. It said it had consulted with College 1 in line with the P’s EHC plan, but said the response from BANES did not confirm whether College 1 could meet P’s needs, irrespective of capacity, as it was required to do. The Council acknowledged it should have taken this matter up with BANES when it received the original consultation response, and said it would do so now.
19. The Council contacted BANES again to this effect on 29 April. The headteacher of College 1 replied to the Council on 30 April, and explained the physical limitations of the classroom, and the level of support P needed, meant it would compromise the efficient education of its students if it were to accept him.
20. Mr D complained again on 30 April. He accused the Council of deliberately delaying its consultation, to ensure there would be no place available for P at College 1. He also raised a number of historical issues about the Council’s involvement with P, going back to his time at nursery. Mr D asked for a ‘statutory’ investigation of his complaint.
21. The Council sent an interim response to Mr D on the same day, to explain how it was handling his complaint. The Council also said College 2 had now advised it may be able to offer a place to P.
22. In May and June, P’s place at College 2 was confirmed, and a transition plan was arranged for him. This involved P making visits to the college, staff from the college visiting him, and several meetings between staff and P’s parents. It was planned he would begin attending the college three days per week in September, with a possible increase to four days later in the month.
23. However, Mr D raised concerns with a local Councillor that P’s attendance at College 2 would not be full-time.
24. The Council provided a stage 2 response to Mr D’s complaint on 14 June. It said it could not address the historical aspects of his complaint. It also explained the statutory complaints procedure only applied to social care matters, not the issues Mr D had raised.
25. On the main point, about the delay in consulting with College 1, the Council did not uphold Mr D’s complaint. It said its records showed it had consulted with BANES in December 2018, which had confirmed the college was full at that point.
26. On 11 July, Mr D, his wife, a local Councillor, and a Council officer (Officer B) met at the private mediation company’s office. Later the same day, Officer B emailed an action plan to Mr D, which including his taking personal management of P’s case, addressing his concerns about the complaint response, and about the proposed part-time timetable for P at College 2.
27. Mr D submitted a further complaint on 15 July. He disputed the Council had consulted with College 1 in December, and asked why he was not informed until March if this had been the case. He also said he had asked for an emergency review of P’s EHC plan after being told College 1 was full, but P’s current school had informed him the Council had refused this.
28. The Council sent a formal response on 26 July. It confirmed, upon review, the consultation with College 1 had taken place in March, not December as it had previously stated. The Council explained this had happened because of an increase in workload, and because of an administrative error in liaising with P’s then-current school.
29. The Council apologised to Mr D, and said it would undertake a review to prevent a recurrence of this error, but acknowledged this would not change the situation for P. The Council said it was “open to question” whether it could have secured a place for him at College 1 by consulting with it more promptly.
30. The Council also said it understood the preparations for P’s move to College 2 were “promising”, and that the college had taken on the role of overseeing his work experience, which would bring P up to full-time attendance.
31. Mr D wrote to the Council again on 10 August. He acknowledged the Council’s admission of its error, but reiterated his disappointment with the fact P had missed out on a place at College 1. Mr D also said he had heard nothing about College 2 overseeing P’s work experience.
32. P began attending College 2 in September. On 27 September, Mr D wrote to Officer B, to say staff at the college could not manage P’s needs, and that the college was intending to approach the Council urgently about this. Mr D again pointed out he had requested an emergency review of P’s EHC plan.
33. Officer B arranged a meeting between himself, Mr D, another Council officer, and two members of staff from College 2 on 7 October to discuss P’s placement. Officer B said it would not be appropriate for this to be treated as an EHC plan review meeting, as it was too short notice to make proper arrangements, but said a date could be set for the review during the meeting.
34. On 10 October, Officer B wrote to Mr D. He confirmed all parties had agreed P’s placement at College 2 had not been going well. Officer B made two draft proposals: either to create a more tailored package for P, to help him integrate into college; or a placement at a special school, either as a day or residential student.
35. Officer B wrote to Mr D again on 31 October. He said he had attended a meeting the previous day, and it had been concluded the proposal involving College 2 was not viable. Officer B explained the Council was taking steps to identify other possible placements, but apologised for the further delays which would arise.
36. Mr D replied to Officer B. He described the effect on P of being out of college, and complained again about the Council’s handling of the request for a place at College 1. Mr D suggested another placement, College 3, as suitable for P, and asked the Council to consider it.
37. Officer B confirmed to Mr D the Council was consulting with College 3, and a number of other placements, on 12 November.
38. On 18 November, Mr D referred his complaint to the Ombudsman.
39. Since we began our investigation of Mr D’s complaint, the Council has confirmed that P started at College 3 in January 2020.

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Legislative background

Transition to post-16 education

40. At paragraph 8.24, the Special Educational Need and Disability (SEND) Code of Practice says:

For children and young people with EHC plans, discussions about post-16 options will be part of the preparing for adulthood focus of ECH plan reviews, which must be included as part of the review from Year 9 (age 13-14). The local authority must ensure these reviews take place, and schools and colleges must co-operate with the local authority in these reviews. If it is clear that a young person wants to attend a different school (sixth form) or a college, then that school or college must cooperate, so that it can help to shape the EHC plan, help to define the outcomes for that young person and start developing a post-16 study programme tailored to their needs.

41. At paragraph 9.180, the Code of Practice says:

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.

Naming a placement in an EHC plan

42. At paragraphs 9.79 and 9.80, the Code of Practice says:

If a child’s parent or a young person makes a request for a particular nursery, school or post-16 institution in these groups the local authority must comply with that preference and name the school or college in the EHC plan unless:

• it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
• the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources

Efficient education means providing for each child or young person a suitable, appropriate education in terms of their age, ability, aptitude and any special educational needs they may have. Where a local authority is considering the appropriateness of an individual institution, ‘others’ is intended to mean the children and young people with whom the child or young person with an EHC plan will directly come into contact on a regular day-to-day basis.

The local authority must consult the governing body, principal or proprietor of the school or college concerned and consider their comments very carefully before deciding whether to name it in the child or young person’s EHC plan, sending the school or college a copy of the draft plan. If another local authority maintains the school, they too must be consulted.

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Analysis

43. Mr D complains the Council delayed its consultation with College 1 until early March, in the year P was due to transfer to post-16 education. The college was already full by this point, and so Mr D considers this delay was the reason P was unable to gain a place there. Mr D also considers the problems P experienced at College 2 are a direct consequence of the Council’s mishandling of his request for a placement at College 1.
44. The Council has confirmed it did not approach College 1 when it should have done. In this respect, it has admitted to being at fault. I therefore do not need to make a finding on this, and will instead focus on the consequences of the Council’s fault.
45. I cannot say from the evidence exactly when Mr D notified the Council he and P’s mother wished him to attend College 1, but it appears to have been on or shortly before 19 December 2018. Given the imminent Christmas and New Year break, it does not appear likely the Council would have received a response to its consultation before approximately mid-January at the earliest, even if it had started the process immediately.
46. The Council says, having reviewed P’s EHC plan at the end of 2018, it issued a final amended plan on 2 January. In Section I (where the child or young person’s educational placement is named), the plan names only P’s then-current school. It does not suggest P would be transferring to another establishment at the beginning of the next academic year.
47. I note P’s previous final EHC plan was dated June 2017. As EHC plans are supposed to be reviewed annually, it appears this was quite significantly overdue by December 2018. I will assume, therefore, the Council felt it was under some pressure to issue an amended final plan as soon as possible.
48. But, and while I appreciate the Council’s reasons for doing this, the statutory deadline for issuing P’s final EHC plan – in that year – was 31 March. I would not have considered it a significant fault for the Council to delay issuing the plan, in order to complete a consultation with College 1 before this deadline. So I must question the decision to proceed with issuing the plan on 2 January, when Mr D had asked the Council to investigate the possibility of a placement there.
49. In either case, however, once the Council had issued the final plan on 2 January, Mr D had a right to submit an appeal to the SEND Tribunal. The Tribunal can hear appeals, both about a Council decision to name a disputed placement in an EHC plan, or a failure to name any placement at all.
50. The law says the Ombudsman should not consider any matter, where the complainant had the right to appeal to a tribunal. While he can disapply this rule, where he accepts it was not reasonable for the complainant to approach the tribunal, Mr D has not explained why he did not appeal the Council’s failure to name College 1 on the January 2019 EHC plan, as he wished. On the current evidence, I cannot, therefore, disapply the rule.
51. Even if I could disapply the rule, however, I am still unable to make my own decision whether College 1 – or any other establishment – should have been named as P’s placement.
52. Further to this, I note Mr D says a place at College 1 was available when he and P’s mother visited there. As I understand it, this was in November 2018. Even if the Council had consulted in December / January, I must recognise College 1 may already have been full. So it is far from certain the Council’s failure to consult with College 1 at that point meant P missed out on a place there.
53. I should add, if the Council named College 1 on the EHC plan, either of its own accord, or under instruction from the Tribunal, the college (as a state-maintained establishment) would then lawfully have had to admit P. But the Council and Tribunal would still need to consider whether admitting another student would be detrimental to the efficient education of others in the college, before making a decision to name College 1 on the plan.
54. Taking these points together, I cannot find that P would have been able to attend College 1 if the Council had not been at fault. It remains equally possible he would not have secured a place there, even if the Council had consulted at the right time.
55. For the same reason, I also cannot say that P’s failed placement at College 2 was an injustice arising from the Council’s fault. If P had not gained a place at College 1, even without the Council’s fault, then logically the placement at College 2 would still have been arranged for him.
56. I appreciate, in hindsight, that College 2 was not an appropriate placement for P. But I cannot say this should have been obvious to the Council sooner. It is unfortunate the placement broke down quickly, but there can be no guarantee a transfer to a particular establishment will be successful, especially for a child or young person with considerable needs, such as P.
57. So, the fact the placement did break down does not, in itself, mean the Council was at fault. And it appears the Council quickly grasped the fact it had broken down, and began seeking another placement. There is no obvious reason to criticise the Council in this respect.
58. I note Mr D also criticised the fact the placement at College 2 was not, initially, arranged to be full-time. However, the Council did not have control over P’s timetable at the college, and so this is a complaint for the college itself to have addressed. The Ombudsman has no jurisdiction over the internal management of schools or colleges, and so I cannot investigate this matter.
59. None of this is intended to dismiss the Council’s failure to consult with College 1 sooner. As I have said, there is no question this was fault. But there is no guarantee P would have gained a place at College 1, even without this fault; and, moreover, it is not for the Ombudsman to determine whether a placement there was appropriate. So I cannot say the outcome would have been any different for P.
60. This brings me to a wider point. As I have quoted, the SEND Code of Practice says planning for a young person’s transition to post-16 education should begin in Year 9. For P, this would have been the academic year 2016/17.
61. I asked the Council to provide me a chronology, showing all key events in its transition planning for P. The first entry in its chronology is the issue of the EHC plan in January 2019. On this basis, I must assume no planning took place earlier than this – and there is also no other evidence to indicate there was any earlier work done. This is a significant fault.
62. Again, I cannot say this fault made any substantive difference to P. Although the planning for his transition should have started some two years earlier than it appears to have done, the Council still had until 31 March 2019 to issue an EHC plan naming his post-16 establishment. For the reasons I have set out, there is no guarantee the Council would have secured P a place at College 1, even if it had met its duties in this respect.
63. But this is still a point of concern, which I will discuss further in the next section.
64. Finally, Mr D also requested an emergency review of P’s EHC plan. I cannot see clearly when he first did this, but I note he raised this point in his complaint of 15 July, saying P’s school had informed him the Council had refused to hold a review. This point was not addressed in the Council’s complaint response of 26 July.
65. Mr D then raised the matter again toward the end of September. In arranging a meeting to discuss P’s placement at College 2, Officer B said it would not be appropriate to treat the meeting as a formal review of his EHC plan, but agreed it was necessary to set a date for the review. I do not have evidence to say what happened with respect to the review thereafter.
66. I must say it is not obvious to me what difference a review in mid-2019 would have made to P’s situation. There is no suggestion the contents of his EHC plan – except for the question of placement – were in dispute, or needed to be updated. A review could not have changed the fact a placement at College 1 was unavailable. It may have allowed further discussion about the appropriateness of College 2, but as I have said, it was not obvious at that point P’s placement there would break down so quickly. It also does not appear Mr D had in mind any other alternative placements at that time.
67. So I cannot say there was a clear need for the Council to comply with Mr D’s request for an emergency review.
68. I note there was never an EHC plan issued with College 2 named as P’s placement. Had the Council reviewed and issued an amended plan in mid-2019, this would have again triggered a right of appeal over the question of placement.
69. But Mr D had already had this right of appeal when the Council issued the plan in January. And, again, I cannot make my own judgement over the appropriateness of P’s placement, nor speculate on what the Tribunal may have decided.
70. Taking these points together, I do not propose to make a finding on this point.
71. In summary, the Council was at fault for delaying its consultation with College 1. This caused Mr D some considerable frustration, which is an injustice; but I cannot say P would have gained a place there, even if there had been no delay. Mr D had the right to appeal about the question of placement, and I can neither speculate on the outcome of such an appeal, nor decide myself that P should have had a place at College 1.
72. It follows, therefore, I cannot say the subsequent break down of P’s placement at College 2 happened because of this fault. It is quite possible this would have happened, even if the Council had done everything right.
73. The Council was also at fault for the general delay in transition planning for P. Again, I cannot say this made any substantive difference to the outcome, but it is a matter of concern.
74. Separately, I have not made a finding on the Council’s handling of Mr D’s request for an emergency review. It is not clear what purpose such a review would have served, and Mr D had already had a right of appeal to the Tribunal. I am, however, critical this point was not addressed in the Council’s complaint response.

Remedy

75. The Ombudsman’s general approach to remedies is to seek to return the complainant(s) to the position they would have been in, had there been no fault by the authority in question. Where this is no longer possible, we may instead consider an alternative, such as a token financial remedy to reflect the distress, frustration, loss of opportunity or time and trouble the complainant has suffered, as a result of the fault.
76. In this case, although there was significant fault by the Council in delaying the consultation, and in P’s transition planning in general, it is not possible to say this has made a significant difference to his situation. It is equally possible he would not have gained a place at College 1, and that he would have endured a failed placement at College 2.
77. The Ombudsman may also recommend the payment of a financial remedy, where fault by the relevant authority has led to a loss of education. We will normally calculate such remedies on a monthly basis, taking into account the particular circumstances of each case.
78. However, I do not consider that is applicable here. P had a place in school until the end of the 2018/19 academic year; he also had a place in college at the beginning of the 2019/20 year. The college place broke down quickly, and, as I understand it, he was without a placement for the remainder of the Autumn Term. But, as I have said, I cannot attribute this directly to the Council’s fault, and so it would be inappropriate to recommend a remedy for loss of education.
79. There remains, however, a question of uncertainty here. While I cannot say P would have gone to College 1, as Mr D wished, he may have done. This uncertainty has clearly caused Mr D some considerable frustration.
80. To this end, I consider the Council should offer Mr D a token financial remedy, to reflect this frustration.
81. Under other circumstances, I might also recommend the Council write a formal letter of apology to Mr D. However, I am satisfied the Council’s complaint response of 26 July provides a meaningful apology, and so I do not think there is anything more to be gained by making such a recommendation.
82. I do note the complaint response of 26 July says the Council was undertaking a review of “these and other processes”. It is not clear what the scope of this review was, although it appears to pertain mainly to the delay in consulting with School 1.
83. It is positive the Council saw fit to undertake a proactive review of these matters. However, I remain concerned the Council does not appear to have addressed the wider point I have made here, about the general delay in transition planning for P. There appears, in fact, little recognition at all of this critical matter.
84. This being the case, I consider it imperative the Council ensures its processes for post-16 transition planning are fit for purpose.

Recommended action

85. Within one month of the date of my final decision, the Council should offer to pay Mr D £300, to reflect the frustration caused by the delayed consultation with College 1.
86. Within three months of the date of my final decision, the Council should review its process for post-16 transition planning, to ensure it begins in Year 9, as required by the Code of Practice. It should then report back to the Ombudsman to explain the outcome of this review, and any changes it has made.

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Final decision

87. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman