Summary: there was fault by Hampshire County Council in its handling of X’s post 16 transfer to sixth form college from late 2018 in the form of delay. The Council also failed to make the speech and occupational therapy provision detailed in X’s EHC plan for the autumn term in 2019. This fault caused X and his mother, Ms B, injustice and the Council will take the action recommended to recognise this.

The complaint

1. The complainant, whom I shall refer to as Ms B, complains that the Council failed to properly meet her son, X’s, special educational needs. In particular she says it:

1. made no arrangements for X’s post-16 education in a mainstream sixth form contrary to the requirements detailed in the Special Educational Needs Code of Practice. To obtain a place she made an application for a place under the usual admissions process; and
2. delayed putting in place the occupational and speech and language therapy provision specified in EHC plan after he transferred to a post 16 setting in September 2019.

2. Ms B says the injustice she and X have been caused is stress, avoidable time and trouble in having to chase up arrangements for X’s transfer to post 16 education and that X missed out on speech and language therapy (SALT) and occupational therapy (OT) support between September 2019 and early 2020.

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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. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the SEN tribunal can do this.
5. 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. We will not usually substitute our judgement for the judgement of professionals.
6. 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 have been delays in the process.

7. 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

8. I considered the information Ms B provided with her complaint and discussed the complaint with her. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
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. Ms B and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

What should have happened

11. The Annual Review of an EHC Plan considers whether the provision remains appropriate and whether progress is being made towards the targets in the Plan. The statutory guidance in the Special Educational Needs Code of Practice (the Code) says the council’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting.
12. In practice the review process includes the annual review meeting and the Council’s decision following the meeting. Parents have a right of appeal to the SEN Tribunal if they disagree with the decision to maintain, cease or amend the Plan at the end of that process.
13. For those transferring from secondary school to a post-16 institution, the EHC plan must be reviewed and amended by 31 March in the year of transfer. Discussions about transfer to a different stage of education for a child with an EHC plan effectively need to begin relatively early in the autumn term of the year before transfer to allow enough time for the review and amendment process to be completed.
14. The Code identifies all the key phase transfers and states that 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 and, where necessary, commissioning of support and provision at the new institution’.
15. Where a council decides to amend the Plan following a review it must notify the parent of this decision within four weeks of the review meeting. There is however no statutory timeframe for how long the Council can take to do the amendments, the Code simply says this should happen ‘without delay’.
16. Once the amendments are written by the council they must be sent to the parent who must be provided with at least 15 calendar days to comment on proposed changes to an EHC plan and asked if they would like a particular educational setting named on the plan. After receiving a response from the parents the Council must issue the amended plan as quickly as possible and within 8 weeks of the amendment notice. The council must advise parents of their right of appeal when writing to them with the final amended plan.
17. After the review, the EHC plan should state that the child or young person will continue to attend their current setting until the end of the academic year (or another date if different). In Section I, it should name the setting or the type of setting that they will attend from the start of the next academic year.
18. The Code states that where a Council is maintaining an EHC plan for a child it must secure the provision that is specified in the plan.

What happened

Background

19. X is now 18 years of age. He started attending further (post 16) education in September 2019.

Transfer process

20. X’s annual review took place in November 2018 when X was in year 11 at his special needs secondary school. The report from X’s school provided for this annual review meeting refers to X wanting to progress to M college in September 2019 after completing his GCSEs in summer 2019. M College is a mainstream sixth form.
21. In order to meet the requirement to reach a decision on the review within four weeks of the meeting the Council should have told Ms B what its decision was in December 2018. It appears the Council did not do this as Ms B complained to the Council in mid-January 2019 to say she had not yet received this. The Council sent this decision very shortly after sating it intended maintaining X’s EHC plan but that it would be amending the plan in future to name the further education provision that would be made from September 2019 once it had completed the arrangements for this. It said it would be in touch again shortly about this. Ms B has pointed out that this letter did not include details of her right of appeal to the SEN Tribunal and I agree it did not but by that stage it had not yet identified a school or completed the amendments that would detail this change of provision.
22. In late January M College contacted the Council’s SEN team to ask when it would be sending its consultation regarding X as he had already applied for a place at the college and the college wanted to arrange an interview. Later the same day the Council responded by emailing a copy of X’s paperwork including a copy of his EHC plan to M College and asking if it considered it would be able to meet X’s needs and offer a place for September 2019. The Council says that M College responded in early February stating it did not consider it could meet X’s needs.
23. The Council sent the proposed amended plan to both Ms B, M college and X’s current school in early March 2019. It also sent X’s paperwork to two other colleges. The Council says it asked Ms B to advise the Council at that time on which post 16 education setting she wanted named on X’s EHC plan asking her to provide this and her comments on the proposed amendments in 15 days. The Council argues this timescale allowed for it to receive and consider any response/comments Ms B made and still allow it to issue the final amended EHC plan by 31 March as required. It says it did not name M college on the proposed amended EHC plan as the college had indicated at that time that it could not meet X’s needs.
24. In mid-March Ms B asked for a meeting with Council officers in the SEN team to discuss the proposed amended plan. It seems this meeting was set up for early April.
25. As a result of this meeting the Council agreed to amend the proposed amended plan but it appears it did not do this until August 2019. I note that in its response to Ms B’s complaint about this in October 2019 the Council accepted this delay on their part was unacceptable.
26. Ms B asked for further changes to this plan in early September and asked the Council to name M College on the EHC plan at this time. The Council says that X was able to start at M College on time in September and says the college accepted his existing EHC plan at that time. The Council says the final amended EHC plan was issued at the end of October 2019. The final plan named M college as X’s placement.

Provision of speech and language therapy and occupational therapy since September 2019

27. Again I note that in its response to Ms B’s complaint in October 2019 the Council accepted there was some fault in that this provision had not been put in place yet and the Council apologised for this and said it was setting the provision up the provision urgently.
28. It appears that the Council then started to try to identify suitable providers of both speech and language and occupational therapy from November 2019. The Council’s chronology confirms it approached three providers of SALT and OT in November. The Council says it identified a speech and language provider just before Christmas 2019 and that speech and language therapy began in January. The chronology suggests that OT provision started in February after a provider was identified and reports were obtained.
29. In its comments to me the Council has said that there has been very high pressure on resources for speech and language and occupational therapy and so the provision has ben struggling to meet local needs. The Council says that it is working with the health service to try to address this.

Ms B’s complaints to the Council

30. Ms B complained to the Council around mid-February 2019. She complained that the Council had failed to reach a decision following the annual review in November.
31. The Council responded in early March accepting there had been an administrative error by the Council which resulted in it not processing the annual review paperwork the college sent to it in late November 2018. The Council apologised for this and confirmed it had sent Ms B the outcome of the annual review in late February 2019.
32. In October 2019 Ms B complained to the Council again stating the Council had by then still failed to issue the final amended EHC plan and also that it had failed to make SALT, OT and psychological provision detailed in the existing EHC plan since the beginning of term in September 2019.
33. The Council provided its response in early November. It accepted the delays in issuing the final EHC plan stating it recognised this should have been issued by 31 March but had not been issued until the end of October. It explained the SEN service had been extremely busy and that it had been provided with additional funding with which to recruit more staff and that this should enable statutory deadlines to be met more effectively in future. It partly accepted that it had failed to put in place some of the provision in the draft EHC plan and apologised that it had not yet put in place the SALT and OT provision stating it was seeking to resolve this urgently but also said that the psychological provision had been removed from the amended plan and so would not be put in place.
34. In January 2020 the Council provided a response at stage 3 of its complaints procedure following further contact from Ms B. It apologised that it had failed to update her following its letter in November about progress in identifying SALT and OT provision. It apologised for the delays and offered Ms B a payment of £250 to recognise the time and trouble she had been caused.

Was the Council at fault and did this cause injustice?

35. The Council has already accepted that it delayed the transfer process and in issuing the final amended EHC plan. It is clear that the final amended plan was issued six months late.
36. The more detailed breakdown of these delays is:
• delay in writing to Ms B to confirm that it intended amending the EHC plan following the annual review in November 2018. The Council should have done this within four weeks of the annual review but only did so after Ms B chased this up and around 3 months after the annual review meeting;
• the Council says that had Ms B provided her response in 15 days the Council could still have issued the final amended plan by the 31 March deadline. I do not consider this is a very reasonable point by the Council: Ms B was entitled to request a meeting to discuss the proposed changes and had the council acted more promptly it seems likely such a meeting could have been arranged some time before the 31 March deadline;
• even though a meeting did take place in early April, the Council did not then issue a further amended EHC plan until August so this was further avoidable delay; and
• the Council was required to complete the transfer process and issue the final amended EHC plan by 31 March. In its comments to me the Council said that it chose not to finalise a setting that neither Ms B or X requested or before the proposed amendments were agreed. I recognise that the Council was trying to work with Ms B and X in this regard but it failed to meet the statutory deadlines and should have issued the final amended EHC plan in any case. Ms B would then have had an opportunity to appeal to the SEN Tribunal if she was dissatisfied with the school named or other aspects of the amended plan. Ms B was consequently denied an opportunity to appeal. In considering the injustice this delay caused I recognise that had the Council issued the amended EHC plan on 31 March and Ms B had immediately appealed to the SEN Tribunal it is typically the case that it takes several months before a hearing is timetabled. So, I cannot say with any certainty that a hearing would have taken place or what the outcome of any appeal may have been. The only injustice that I can therefore confidently identify in this respect is lost opportunity (to appeal) and frustration for both Ms B and X.
37. Ms B has complained that the Council’s letter in January (in which it told her it intended maintaining X’s EHC plan and would be amending the school named from September once it had identified this) failed to provide her with details of her right of appeal to the SEN Tribunal. I consider it would only have needed to advise her if her right of appeal at this time if it had decided not to maintain the EHC plan. It did not do this though as it said it intended amending the plan in relation to the school named. It would have been at the point it amended that the right of appeal was triggered.
38. I recognise that it appears that it was only when Ms B complained or pursued the matter with the Council that any action was taken in the early part of 2019 and again in October 2019. This amounts to fault that caused injustice in the form of avoidable time and trouble.
39. It seems clear that the Council failed to make the SLT and OT provision provided for in the EHC plan in place until 30 October and the provision detailed in the subsequent final amended plan from that date for the entirety of the autumn term in 2019. Whilst I recognise that it did start to try to identify a provider in October 2019 this was seemingly only as a result of Ms B raising the issue then. The Council is responsible for ensuring the the provision in the EHC plan is made. The Council knew that X was attending a mainstream sixth form college from September 2019 and that this setting would not provide SALT and OT onsite as his previous special needs school had done. It should therefore have taken action to put this in place from September. The failure to do so amounts to fault. Whilst I recognise that the Council says it has struggled to identify providers due to a shortage of these professionals, had it made the proper arrangements in a more timely manner with regard to the transfer process it is reasonable to believe that the placement could have been identified earlier and that provision could have been sought earlier. I therefore consider the failure to make this provision for the autumn term amounts to fault and this fault caused X injustice as he was denied specialist SALT and OT support that was detailed in in EHC plan. This was weekly provision for both SALT and OT.
40. With regard the Ms B’s complaint that she had to apply for a place for X at M College using the usual application procedure, I note that the Council gave Ms B the opportunity to name a provision from early March 2019 and it seems she did not do so until September. I also note that it appears from the email to the Council from M college in January 2019 that she had already submitted an application by that time. Ms B says that at the time the Council’s website said that parents with a child with an EHC plan were incorrectly told that they needed to submit an school application under the usual process. The website does not say this now. I am unable to definitely say it said this was required at the time so make no finding on this.

Agreed action

41. The Council will apologise to Ms B and X for the failings identified above.
42. The Council offered a payment of £250 to Ms B for the avoidable time and trouble she was caused in having to complain to get these matters dealt with. If this payment has not been paid it will be now. A payment of £250 for time and trouble is towards the upper end of the amount we usually recommend to recognise avoidable time and trouble but this was the amount the Council originally offered and I also note that it was only when Ms B complained that any action was seemingly taken.
43. In addition, it will make a further payment of £150 to Ms B and £150 to X to recognise the avoidable distress and frustration caused by the failure to issue the final EHC plan promptly, the uncertainty this then caused about the placement from September and the lost opportunity to appeal to the SEN Tribunal.
44. The Council will also take action to make up for the lost SALT and OT provision during the autumn term. As so much has been missed it does not seem feasible to ask the Council to make up the lost provision now. The Council will therefore make a payment to recognise the impact of this missed provision. This payment may enable Ms B and X to buy in some additional provision now, if X can manage more than is being provided or to buy, for example, some equipment that may assist with SALT and OT provision now. The Council will pay an amount of £600 to recognise missed SALT provision for three and a half months and missed OT provision for around four and a half months and is calculated at a rate of £75 per provision per month. This is a payment at the lower end of recommendations we would make for lost provision. This is because the OT and SALT provision formed only part of the total provision.
45. The Council will complete the above within one month of the date of the final decision on the complaint.
46. Within three months of the date of the final decision on the complaint the Council will provide details of current policy and procedures which ensure that action is taken sufficiently early to ensure timely transition arrangements that will meet the relevant statutory deadlines for children with EHC plans at points of educational transition.
47. The Council will provide us with details of the review it is currently undertaking regarding provision of therapies under EHC plans to satisfy us about how it will ensure that it will have sufficient provision to provide SALT and OT for children who have this service detailed in EHC plans. The Council’s review is due to be completed in April 2021 and the Council will provide us with details of the outcome of this review then.

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Final decision

48. There was fault by the Council in its handling of X’s post 16 transfer to sixth form college from late 2018 in the form of avoidable delay and that it failed to make the SALT and OT provision detailed in X’s EHC plan for the autumn term in 2019. The Council will take the agreed action to recognise the injustice this fault caused Ms B and X.

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Investigator's decision on behalf of the Ombudsman