Summary: Ms X complained the Council failed to provide her daughter, Y, with transition arrangements for post 16 education. Ms X also complained the Council delayed identifying Y an education placement and delayed issuing her Education, Health and Care Plan (EHCP) paperwork. Ms X says this has caused Y distress and anxiety and she is out of education. The Council did not provide a transition, has not provided education and delayed in the EHCP process. Ms X has suffered distress and Y has missed out on education. The Council has agreed to apologise to Ms X and Y for its fault, make a financial payment and provide guidance to its staff to confirm its statutory duties.

The complaint

1. Ms X complained the Council failed to provide her daughter, Y, with transition arrangements for post 16 education. Ms X also complained the Council delayed identifying Y an education placement and delayed issuing her Education, Health and Care Plan (EHCP) paperwork. Ms X says this has caused Y distress and anxiety and she is out of education.

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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)
4. 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

5. I read Ms X’s complaint and spoke to her about it on the phone.
6. I considered information provided by Ms X and the Council.
7. Ms 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

8. 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.
9. We can consider the other sections of an EHCP. 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.
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. 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.
12. 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)
13. The procedure for reviewing and amending EHCPs is set out in legislation and government guidance.
14. 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)
15. 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)
16. The Special Educational Needs and Disability Code states if a Council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
17. 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)
18. 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.
19. 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. 
20. 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

21. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
22. I have investigated events in Ms X’s complaint from January 2021. I reference information prior to this date to give context to the case.
23. Y has special educational needs and has not attended school consistently since 2019. She was diagnosed with school phobia in April 2019. She was provided with some education she completed at home.
24. In March 2020, Y’s school held an annual review. Y confirmed she would like to move to a specialist school and Ms X supported her decision. The meeting did not discuss transition arrangements. The Council issued Y’s EHCP in May 2020.
25. The school held the annual review in May 2021. Y requested a phased transfer to college B. The annual review confirmed it would invite a representative from college B to the year 11 annual review. The review recommended the Council amend Y’s plan.
26. The Council wrote to Ms X in August 2021 to inform her of its decision to amend the EHCP.
27. At the start of September 2021, the school held another annual review. The review paperwork was similar to the paperwork from the review held in May. Again, Y requested a phased transfer to college B. It also confirmed the school would invite a representative from college B to the year 11 annual review failing to recognise the meeting was the year 11 annual review. The outcome of the review again recommended the Council amend Y’s plan.
28. The Council sent a consultation letter to college B in December 2021.
29. College B responded to the Council’s consultation in January 2022. It confirmed the college was not suitable for Y.
30. The Council sent a consultation to a different college, college C, in February 2022. The Council considered college C was appropriate and three days later college C confirmed it could meet Y’s needs.
31. Ms X explained she was unaware of the Council’s consultation with college C. She stated it was too far for Y to travel and in March 2022 she informed college C, Y would not accept its offer of a place.
32. Ms X complained to the Council in May 2022. She complained Y had no place for September and raised an issue about poor communication.
33. The Council responded in July 2022. The Council accepted it missed the deadline to notify Ms X and Y about what education setting she would attend from September and apologised. The response confirmed the Council had not sent any further consultations. The Council said it had high workloads and apologised. Ms X requested the Council escalate her complaint to stage two.
34. Three days after it’s response, the Council consulted with another education provider, college D.
35. College D responded in August 2022. It requested further information but did not confirm if it could meet Y’s needs.
36. The Council responded to Ms X’s stage two complaint at the end of October 2022. The Council did not address the complaint but offered a potential different provision.
37. Ms X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Ms X would like the Council to compensate Y for the distress and anxiety this caused.
38. In response to my enquiries the Council accepted it had not issued an EHCP by 31 March 2022 for Y’s transition and this frustrated Y’s right of appeal to the SEND tribunal. It also confirmed it did not secure a post 16 placement for Y for September 2022, did not provide an alternative education for Y and did not hold her annual review in September 2022. It offered an apology for this failure and to arrange an annual review.
39. Ms X confirmed in January 2023, she had made the decision to home school Y.

My findings

EHCP

40. It is clear from the evidence provided, and the Council has accepted, there has been significant delays in this case. The annual review recommended amendments to Y’s EHCP in May and September 2021. The Council appears to have discussed transition to post-16 education, but nothing about Y transitioning has been completed. It also referenced inviting people to the year 11 review whilst the year 11 review was taking place. The Council did not amend the plan after either review and did not communicate its decision. This caused Y an injustice as the Council did not update her plan to ensure it was still correct and could meet her needs.
41. The Council’s failure to issue an updated EHCP also meant appeal rights were not engaged so the family could not challenge the content of the plan or placement at the SEND tribunal. This caused further frustration and distress. The Council has still not issued a final EHCP since writing to Ms X to confirm it would amend the EHCP.
42. The Ombudsman takes the view that Council’s must abide by the statutory and legislative requirements under the SEN legislation and guidance. The Council’s failure to meet the required timeframes here amounts to fault.
43. Y is a young person who needed support in preparing to move to post-16 education. Transition to post-16 education is an anxious time. The Council has not made any transition arrangements for Y. She has not received any transition to support her to move to post-16 education. While we cannot say if Y had a suitable transition, she would be attending education, it is reasonable to say not receiving any support reduced her ability to engage. This is fault and impacted Y’s engagement with education.

Alternative provision

44. The Council did not provide Y any education from September 2022 until Ms X decided home school was the best option for Y in January 2023. This is fault and Y has missed out on education provision for four months.
45. The Council also did not ensure Y received pastoral support and sports programme provision specified in her EHCP during this time. This is fault.
46. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
47. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a Council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
48. When a young person has missed education because of fault by the Council, we may recommend the Council makes a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £200 and £600 per school month to acknowledge the impact of that loss, to be used for the young person’s educational benefit.
49. Y did not receive any education. Ms X funded her education materials during this time. Y has additional needs, and it was recognised she required support for this, as detailed in the EHCP. She did not receive any of this provision either. This adds to the injustice Y was caused. Y is not of statutory school age but wanted to engage in education. I consider any payment should be at the middle of the scale set out in our guidance on remedies.

Delays

50. The Council has acknowledged it did not consult with education providers in a reasonable time. This is fault and caused Y additional distress.
51. The Council delayed responding to Ms X’s complaint. This is fault and caused Ms X additional frustration.
52. The Council stated in its response the fault and delay in this case was due to low staffing levels and higher than usual workloads. This reason does not remove the Council’s duty owed to Y and is not an acceptable excuse. The Ombudsman has recommended a significant number of service improvements to address the failings with SEN provision at this Council since April 2021. The fault in this case indicates lessons are not being properly learnt, issues are not being addressed appropriately and service improvements are not being fully or adequately embedded.

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Agreed action

53. To remedy the outstanding injustice caused to Ms 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 Ms X and Y for not following statutory timescales, not ensuring Y had an education placement, not ensuring an appropriate transition and not providing any education provision.
• Pay Ms X £200 to acknowledge the time and trouble pursuing this complaint.
• Pay Ms X £200 to acknowledge the frustration and distress caused due to the Council’s faults.
• Pay Ms X £1200 for not providing any education since September 2022, EHCP provision since September 2022 or transition for Y. This money should be used for Y’s benefit.
54. The Council should take the following action within two months of my final decision:
• Develop an action plan to indicate how it intends to address ongoing delays and issues with EHCP annual reviews. This report should be taken to the relevant committee for democratic oversight and scrutiny.
55. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman