Summary: Miss X complained her son, Y, did not receive the transition specified in his Education, Health and Care Plan (EHCP) when he moved to college. Miss X also complained Y is not receiving the one-to-one support specified in his plan. She complained the Council denied receiving a personal budget request for speech and language therapy (SALT). Miss X says this has meant Y is not receiving the support he needs. Miss X also says she was not able to appeal against the EHCP as the Council delayed the annual review. The Council was at fault. The Council did not provide support specified in Y’s EHCP and did not review the EHCP in time in line with legislation. Miss X’s appeal rights were frustrated as a result. The Council should apologise to Miss X and Y, ensure Y is receiving the support set out in his EHCP and pay a financial remedy to acknowledge the impact of its fault.

The complaint

1. Miss X complained her son, Y, did not receive the transition specified in his Education, Health and Care Plan (EHCP) when he moved to college. Miss X also complained Y is not receiving the one-to-one support specified in his plan. She complained the Council denied receiving a personal budget request for speech and language therapy (SALT). Miss X says this has meant Y is not receiving the support he needs. Miss X also says she was not able to appeal against the EHCP as the Council delayed the annual review.

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What I have and have not investigated

2. Miss X has an ongoing case with the Ombudsman which is considering events prior to May 2022. I have investigated events in Miss X’s complaint from May 2022 until when Miss X complained to the Ombudsman in September 2022. I reference information prior to these dates to give context to the case.

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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. 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)
5. 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

6. I read Miss X’s complaint and spoke to her about it on the phone.
7. I considered information provided by Miss X and the Council.
8. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

9. Miss X has an ongoing complaint with the Ombudsman which will consider matters up to May 2022.
10. 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.
11. 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.
12. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHCP has been issued.
13. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 
14. The Council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a Council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
15. The procedure for reviewing and amending EHCPs is set out in legislation and government guidance.
16. Within four weeks of a review meeting, a Council must notify the child’s parent of its decision to maintain, amend or discontinue the EHCP. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
17. Where a council proposes to amend an EHCP, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
18. Following comments from the child’s parent or the young person, if the Council decides to continue to make amendments, it must issue the amended EHCP as soon as practicable and within eight weeks of the date it sent the EHCP and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
19. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHCP. The right of appeal is only engaged when the final amended plan is issued.
20. For young people with an EHCP, preparation for transition to adulthood must begin from year 9 (age 13 to 14). Transition planning must consider the young person’s needs as they move towards adulthood. It should plan to support their choices for further education, employment, career planning, financial support, accommodation, and personal budgets where appropriate. 
21. For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHCP– including 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

22. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
23. Y has complex additional needs and attended a mainstream school, with additional support. He had an EHCP which specified his needs and provision to meet those needs.
24. The contents of Y’s EHCP, issued in March 2021, were considered at tribunal in November 2021. The Tribunal issued an order which Miss X said was inaccurate. The second order was issued in December 2021. The Council had stated it could not review the plan if Miss X was appealing to the tribunal. The tribunal order stated the plan could be reviewed if it was under appeal. The order did not specify a review earlier than 12 months from the plan being issued but did say an early annual review can be called at any time if needed. The order stated transition arrangements should be included in the plan. The new EHCP was issued at the end of December 2021.
25. Miss X contacted the Council in January 2022 and stated Y was due to transfer to a post 16 placement in September 2022. Miss X requested his plan was reviewed and updated. She also asked why Y did not always have the one-to-one support specified in his EHCP.
26. Miss X commissioned a private Speech and Language Therapist (SALT) for Y. in February 2022. This report set out the support Y needed when in an education setting.
27. The school arranged an annual review meeting at the end of March 2022. Miss X requested the review was rescheduled as the school did not give her enough time to consider the information provided. Miss X stated the school had not consulted with her or Y to gain their views. She said the school had not gathered information from professionals involved in Y’s education.
28. The school arranged another annual review at the start of April. Miss X felt the school had not followed the correct protocol and asked what professionals had been contacted about the meeting. Miss X was concerned the school had not invited professionals and requested the school postpone the review.
29. The school and Council arranged another review at the end of April 2022. The school invited the college Y wanted to attend. Miss X stated Y’s needs had increased since the Council issued his EHCP. She felt other professionals needed to be consulted. The college confirmed it would only attend if it had received a formal consultation. The Council explained it could not consult with the college, as it had not reviewed the EHCP. The Council did say it could share Y’s previous plan and provide more up to date information it had. Two colleges attended the annual review to gather further information about Y.
30. Miss X requested a reassessment of Y’s needs. She felt the school was not consulting with professionals in the review process. The school confirmed an outcome of the review could be to recommend reassessment. The Council decided not to complete a reassessment as Miss X requested, due to not having enough evidence Y’s needs had significantly changed. The Council did agree to amending the plan.
31. The school completed the annual review at the end of April 2022. The outcome of the review was a decision to amend the plan. The Council issued the draft EHCP at the end of May 2022.
32. Miss X commented on the draft at the start of June 2022. She noted the lack of information about Y’s transition to college. Miss X said the plan stated Y needed a comprehensive transition package, but she wanted more detail.
33. The Council issued the final EHCP at the end of June 2022. The EHCP specified Y would receive one-to-one support at all times throughout the day. It also specified SALT provision should be in place.
34. Miss X complained to the Council at the end of June 2022. She stated the Council had not ensured Y had the appropriate transition to college and the college had confirmed Y would not receive one-to-one at all times. Miss X also said she had applied for a personal budget. The Council had denied it had received this request. She also raised concerns about the content of the plan and indicated she would go to tribunal to address this.
35. The Council responded to the complaint at the end of July 2022. The Council stated the transition plan was not specified or quantified and school would lead the process. The response explained it had not discussed a personal budget at the annual review but confirmed Miss X requested this when it issued the draft EHCP. As the personal budget was for SALT, the Council had to contact the health service and had not had its response. The Council confirmed the college had a duty to secure the one-to-one provision, specified in the EHCP.
36. Miss X responded and pointed out that section F in Y’s EHCP specified transition details and SALT. She requested the Council escalate the complaint to stage two.
37. The Council provided its stage two response in August 2022. It accepted the transition planning was specified and quantified. It explained Miss X and Y attended the college and college had also been able to attend the annual review. The Council said it was unaware of what discussions had taken place between Miss X and the college about the transition arrangements, so did not uphold the complaint. The Council agreed Miss X had requested a personal budget before the plan was finalised.
38. Miss X wrote to the Council at the end of September 2022. She raised concerns that Y was not receiving the one-to-one support, or the SALT specified in his EHCP
39. Miss X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Miss X would like the Council to ensure Y receives the provision specified in his EHCP.
40. In response to my enquiries the Council stated the transition from school to college was organised by education providers and the SALT could be provided through the health service.

My findings

41. The Council did not review Y’s EHCP by 31 March 2022 for his transition to college in September 2022 in accordance with legislation. The Council tried to complete a review before this date. Miss X cancelled the meetings because she did not have adequate time to consider documents and the school did not invite professionals. The school completed the review at the end of April 2022. The delay completing the review, delayed the EHCP being issued and frustrated Miss X’s right to appeal the contents of the EHCP to the SEND tribunal. Transition from school to college is an anxious time. This is fault and has caused uncertainty for Y and Miss X.
42. The Council can delegate its responsibilities to ensure the provision specified in the EHCP. However, the Council remains responsible for ensuring the provision is delivered.
43. The EHCP confirmed Y would have designated keyworkers who had knowledge and experience working with a young person with Y’s needs at all times throughout the day, providing one-to-one support. The Council confirmed Y has not received this but maintained it is the education providers responsibility. The Council is responsible for ensuring Y has the support specified in his plan. This is fault and Y has not received the support required for him to access education.
44. The EHCP also detailed Y would have a programme two to three times per week for 10 to 15 minutes and SALT would review and determine targets. Y has not received the SALT provision in his plan. Miss X requested a personal budget to provide the SALT. The Council accepted it received this request. It stated SALT is a health need and it is the responsibility of the health service to meet this need. This provision is specified in section F, special educational provision, of Y’s EHCP. It remains the responsibility of the Council to ensure this support is provided. It has not done this. This is fault and Y has missed out on SALT provision.
45. The EHCP indicated Y needed to experience a carefully structured transition. It stated staff familiar with Y needed to liaise closely with the post 16 provider and arrange visiting opportunities. The Council’s response initially suggested it was the responsibility of the school and college to arrange the transition. In the Council’s stage two complain response it confirmed Y had one visit to college with Miss X and the college attended the annual review so would not uphold the complaint. This is not a carefully and structured transition. It is concerning a senior Council officer considered this to be appropriate transition for a young person with complex needs. The Council is responsible for ensuring the support named in the plan is provided. The Council has not done this. Y has been attending college part time and has been in receipt of some of the provision specified in his EHCP. Y is still on a reduced timetable. While we cannot say if Y had the suitable transition to college, he would now be attending full-time, it is reasonable to say the lack of transition has delayed his integration at college. This is fault and means Y has not had the planning intended to enable him to engage fully with college.
46. Y is a young person who needed support in preparing for his move to college and in helping him to engage when there. He did not receive that support. This left him unprepared for a significant change in his circumstances. The delay in the annual review also frustrated Miss X’s appeal rights causing further frustration and distress.

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Agreed action

47. To remedy the outstanding injustice caused to Miss X and Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Miss X and Y for not ensuring he was supported in line with his EHCP.
• Pay Miss X £200 for the lack of one-to-one provision for five months. This money should be used for Y’s benefit.
• Pay Miss X £200 for the lack of SALT provision for five months. This money should be used for Y’s benefit. It should pay Miss X a further £50 per month from the date the decision is issued until the SALT provision is arranged and has started.
• Pay Miss X £150 to acknowledge the frustration and distress due to the Council’s delays, failure to ensure an appropriate transition and for frustrating her appeal rights.
• Pay Y £150 to acknowledge the frustration and distress due to the Council’s failure to ensure an appropriate transition to the next stage in his education.
• Evidence the SALT provision has been arranged and is being delivered in accordance with the requirements of the EHCP.
• The Council should issue a decision on Miss X’s personal budget request. If the request is refused, the Council should fully explain its reasons.
• Remind staff of the Council’s responsibilities to ensure the provision set out in the EHCP is secured and provided.
• Provide guidance to its staff to ensure EHCP annual reviews are completed within the appropriate timescales when a young person is about to enter a key stage transition.
48. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

49. I have completed my investigation. I have found fault by the Council, which caused injustice to Miss X and Y.

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Investigator's decision on behalf of the Ombudsman