Summary: Miss B complains about the way the Council handled her daughter, C’s, transition to post-16 education. We found fault with the Council. This caused injustice to Miss B and C. The Council agrees actions to remedy the injustice.

The complaint

1. Miss B complains about the Council’s handling of her daughter, C’s, transition to post-16 education. She says the Council delayed issuing the final EHCP following the annual review in December 2019.
2. Miss B also complains:
• No Special Educational Needs (SEN) officer was present at C’s annual review in December 2019.
• She was not made aware of consultations to colleges for a post-16 placement for C and no one asked their views.
• SEN officers were not aware of historical events involving C, which should have been considered in the decision making.
• Her request for C to repeat year 11 was refused.

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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 question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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)
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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How I considered this complaint

7. I spoke to Miss B and considered the information she provided with her complaint. I made enquiries with the Council and considered its response along with the relevant law and guidance.
8. Miss B and the Council had the opportunity to comment on my draft decision. I carefully considered all the comments I received.

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What I found

Law and guidance

Education, Health and Care plans (EHCP’s)

9. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.

10. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.
11. If parents or a young person disagrees with the content of an EHCP or the proposed placement, they can appeal the First Tier Tribunal Special Educational Needs and Disabilities (SEND) Tribunal.

Annual review

12. The annual review of an EHCP considers whether the provision remains appropriate and whether progress is being made towards the targets in the plan. The Code says the first review must be held within 12 months of the date when the plan was issued, and then within 12 months of any previous review. The Council must notify the child’s parents of its decision within four weeks of the review meeting (and within 12 months of the date of issue of the EHCP or previous review).
13. In practice the review covers not just the annual review meeting, but the Council’s decision (to maintain, cease or amend the plan) following the meeting. Each of these decisions carries a right of appeal.
14. A common complaint is delay after an annual review which delays a right of appeal. Where a council decides to amend the plan 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’. Once the amended plan is ready it must be sent to the parent with an amendment notice. The Council has to issue the final plan within eight weeks of the amendment notice.

Transition

15. Section 9 of the Code of Practice (2015) says an EHCP must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education. This allows for planning for and, where necessary, commissioning of support and provision at the new institution.
16. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHCP, specifying the post-16 provision and naming the institution, must be completed by the 31 March in the calendar year of the transfer.

What happened

17. C has an EHCP for complex needs, which include Attention Deficit Hyperactivity Disorder (ADHD) and Autistic Spectrum Disorder (ASD). Prior to her transition to post-16 education, she was attending a specialist education provision, school A.
18. C’s annual review took place in December 2019. At this meeting Miss B asked for C to remain at school A for an additional academic year (2020- 2021). This would have meant C repeated year 11. There was no representative from the Council at this meeting.
19. The Council issued the draft EHCP in March 2020. It consulted with C’s current school and other placements. Miss B sent her comments on the draft EHCP. She said the only suitable place for C was to remain at school A.
20. Miss B complained to the Council in May 2020. She was unhappy with its communication and the way it was managing the transition process.
21. The Council issued the final EHCP on 25 June 2020. It named a specialist provision at college D. It said C would receive transition support from school A to help her settle at college D.
22. There was an early annual review meeting in July 2020. Miss B asked for C to remain at school A and repeat year 11. The Council said this was not appropriate.
23. C started at college D in September 2020.
24. The Councils multi agency panel considered Miss B’s request for C to repeat year 11 at school A in December 2020. It did not agree to the request.
25. The Council responded to Miss B’s complaint in August and December 2020. In its responses it said:
• The Council explained the implications of C repeating year 11.
• It explained the nearest colleges and sixth forms would need to be considered and consulted.
• At the time of the annual review (July 2020) college D said it could meet C’s needs.
• School A would provide support with transition until December 2020.
• The Council offered C academic support and a keyworker for re-engagement and mental health support. Miss B declined this support.
26. Miss B remained unhappy with the Councils response and complained to the Ombudsman.
27. In response to our enquiries the Council said:
• It thought C would continue at school A so it would not need to name a provision by 31 March 2020. But when school A confirmed it did not have a post-16 offer it sent further consultations.
• C continued to be educated at school A until July 2020. A place at college D was available from September 2020 so there was no gap in provision.
• It sought both Miss B and C’s views for the annual reviews.
• It discussed transition support for C to attend college D at the annual review in July 2020.
• In December 2020 the multi-agency panel considered Miss B’s request for C to repeat year 11 at school A. The panel said the evidence did not support Miss B’s request. The panel did not see the benefit of educating C outside of her chronological year group. It recommended a bespoke package of support in her chronological age should be investigated.
• The Council sent Miss B information about a suitable educational provision for C.
• C’s SEN officer had all the relevant information from C’s file. They also made enquiries with previous officers to gather and clarify information when necessary.

My findings

28. I have summarised my findings under Miss B’s complaint headings.

No SEN Officer was present at C’s annual review in December 2019

29. The Council says SEN officers aim to attend annual review meetings, but it is not possible to attend every meeting. In this case the SEN officer did not attend a key meeting. It was the annual review prior to issuing the EHCP naming the post-16 provision.
30. If an SEN officer had attended the meeting in December 2019, it is likely the issues covered in the July 2020 review would have been raised and addressed earlier. The Council would have established school A did not have post-16 provision and this would have enabled the officer to manage Miss B and C’s expectations about her remaining at school A.
31. It is also likely the multi-agency panel would have heard Miss B’s request for C to repeat year 11 sooner. The decision would have provided more certainty for C before she started her new college in September 2020.
32. It is not a statutory requirement for the Council to attend the annual review meeting. The Council pointed out it did attend the year ten transition review meeting. However, it should ensure that its non-attendance does not have a negative impact on the process.

Delay issuing the final EHCP

33. The Council failed to issue the final EHCP by 31 March 2020. This is fault.
34. It says it did not think it needed to issue the EHCP by this date because C would remain at school A. It should have established this sooner to enable it to meet the statutory timeframes.
35. A delay issuing the final EHCP also delays the right of appeal.

Miss B was not made aware of consultations to colleges for a post 16 placement for C

36. Post-16 placements were discussed at the annual review meetings in December 2019 and July 2020. Miss B and C were advised to look at different post-16 options and visit colleges.
37. If an SEN officer had attended the December 2019 review the consultation process may have been explained more clearly to Miss B. However, I think it is clear from the minutes and correspondence that Miss B understood she needed to consider other post-16 provision for C.

SEN Officers were not aware of historical events involving C, which should have been considered in the decision making

38. I do not find fault with the Council. It had C’s information in its files. There were also emails between the SEN officers requesting additional information about C to assist with their decision making.
39. Better communication between the SEN officers and Miss B may have reassured her they understood C’s history. But I do not think it would have changed the decision making because I can see the officers did consider C’s needs and historic events.

Miss B’s request that C repeated year 11 at school A was refused

40. I do not find fault with the Council for not supporting Miss B’s request. It considered the case at its multi-agency panel and decided it was not in C’s best interests to repeat year 11.
41. The Council explained its decision to Miss B. I know Miss B disagrees with the Council, but it is entitled to make the decision. Where there is no fault in the way a decision is reached we would not question the professional judgement of the decision maker.
42. However, Miss B raised the issue of C repeating year 11 in July 2020 and the panel did not make a decision until December 2020. This could have been decided much earlier if the Council had attended the annual review in December 2019 and fully understood the situation. This would have managed Miss B and C’s expectations better and caused less stress and uncertainty during the transition period.

Injustice

43. I have carefully considered the potential injustice the faults may have caused C and Miss B.
44. Although the Council delayed issuing the EHCP I do not think this caused C to miss out on any provision.
45. Miss B did not appeal so although it delayed her right it did not cause her an injustice.
46. The delay taking the case to multi agency panel did not affect the provision for C because the panel did not agree the request.
47. However, the delays in issuing the EHCP and taking the case to panel caused distress to both Miss B and C at an already difficult time. Miss B also experienced time and trouble bringing her complaint to us.

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Agreed action

48. Within one month of my final decision the Council agrees to:
• Pay C £200 for the distress it caused her.
• Pay Miss B £300 for the distress, time and trouble it caused.
49. Within two months of my final decision the Council agrees to:
• Review its practice for SEN officer attendance at annual reviews prior to transition. If an SEN officer is unable to attend the review meeting it should be able to evidence how it will ensure it does not repeat the faults in this case.
• Review its procedure and practice in relation to issuing EHCP’s within the statutory timeframe for transition to post-16 education. It should evidence how it will ensure it meets these timeframes to avoid repeating the fault in this case.
50. The Council should provide the Ombudsman with evidence it has completed the above actions.

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Final decision

51. I find fault with the Council causing injustice.

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Parts of the complaint that I did not investigate

52. I have not investigated the suitability of the educational provision named in C’s EHCP. Miss B had the right of appeal to the SEND tribunal. She was told of this right when the final EHCP was issued in June 2020.
53. I have not investigated Miss B’s complaint the Council failed to provide a copy of C’s school records. Miss B can make a data access request to the Council or the school for this information. If she is unhappy with the response, she can complain to the Information Commissioners Office.

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Investigator's decision on behalf of the Ombudsman