Summary: The complainant’s representative (Miss X) said the Council failed to provide her son (Y) with adequate education and special educational needs support and transition to adulthood. We found fault in the way the Council carried out Y’s Annual Review and his transition assessment. We also found fault with the way the Council made transport arrangements for Y to attend his college. Some of the Council’s faults caused injustice to Y and Miss X. The Council has agreed to apologise, pay Miss X an equivalent of a mileage allowance for the period the Council should have been providing transport to Y and make payments to Y and Miss X to recognise their distress. The Council has also agreed to carry out some service improvements.

The complaint

1. Miss X complains about the Council’s failings to provide her son Y with adequate education and special educational needs (SEN) support and transition to adulthood. She says the Council failed to:
1. Update Y’s Education Health and Care (EHC) Plan from 2014 until July 2022;
2. Continue Y’s Speech and Language Therapy (SLT) support beyond school year 2017/2018;
3. Provide Y with Occupational Therapy (OT) support;
4. Provide support for Y’s eating disorder;
5. Comply with the statutory timescales for Y’s SEN reassessment following his Annual Review in 2021;
6. Amend Y’s EHC Plan following Annual Reviews;
7. Ensure Y’s representative attended Annual Reviews;
8. Provide Y with school transport;
9. Carry out due diligence for the high needs funding process;
10. Agree for Y to attend another level three course in his college from September 2021;
11. Provide transition for adulthood for Y;

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. 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)
8. If we are satisfied with an organisation’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)
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.

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What I have and have not investigated

10. As explained under paragraph four we would normally investigate events which happened in the last 12 months before a complainant came to us. Miss X complained to us in March 2023. I consider there are good reasons to investigate events which happened from October 2021 for the following reasons:
• Miss X first complained to the Council in August 2022. In view of the complexity of Miss X’s complaint it took some weeks to finalise her statement of complaint. The Council provided its stage one response at the beginning of March 2023, rather than at the beginning of January as it had stated in the acknowledgement of Miss X’s complaint. Miss X should not bear the negative consequences of the Council’s delays.
• it would be difficult to assess the Council’s actions from March 2022 without looking at the events around Y’s Annual Review which took place in October 2021.
11. I did not consider there are good reasons to investigate the earlier events. Miss X told me she had not complained before as had had no knowledge of the complaint process. As a single mother she also focused entirely on supporting her children and managing her own mental health. Although I appreciate Miss X’s difficulties in her specific circumstances, these are not sufficient reasons to extend my investigation beyond October 2021. This is because:
• The Council’s flexibility on considering communication from its service users was demonstrated when Miss X expressed her dissatisfaction with the Council in August 2022. She did it in an informal email, which the Council logged as a formal complaint a month later. In a similar way at any time in the past Miss X could have expressed her dissatisfaction with the way the Council supported Y.
• The evidence suggests throughout the years Miss X had contact with various professionals supporting Y such as his college staff members, SEN case officers and social workers. She could have communicated her dissatisfaction with the Council’s services to them.
12. I did not investigate the way the Council carried out an Annual Review of Y’s EHC Plan in 2023, EHC Plan and any assessments which took place in 2023 as they would not have been considered by the Council through its complaint handling. The Council should have an opportunity to respond to any concerns first, as indicated in the paragraph five of this decision.
13. I have investigated how the Council responded to Miss X’s transport application in 2023 as in response to my enquiries the Council explained the process which took place when Miss X applied for transport for Y in August 2023 and provided relevant documents.
14. I considered Miss X’s concerns about Y’s social care support once he turned 18 and her own support as Y’s carer separately in the complaint 23016700.

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How I considered this complaint

15. I spoke with Miss X and considered the information she provided.
16. I made enquiries with the Council and considered the information it provided.
17. I reviewed the Council’s transport policy statements for the academic years 2021/2022, 2022/2023 and 2023/2024.
18. 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

Legal and administrative framework

EHC Plan

19. 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 tribunal can do this.
20. 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.
21. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. The responsible commissioning body has a duty to arrange health care provision included in a child’s EHC Plan. (Children and Families Act S.42)

Annual Review

22. The Council’s duties on EHCP Annual Reviews are specified in Special Educational Needs and Disability Regulations 2014:
• Councils must review an EHCP at least every 12 months;
• Within two weeks of the review meeting the school must provide a report to the council with any recommended amendments;
• Within four weeks of the meeting, the council must decide whether it will keep the EHCP as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay;
• Where a council proposes to amend an EHC Plan, 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. The council must give the parents at least 15 days to give views on the proposed amendments;
• When the parent suggests changes that the council agrees, it should amend the plan and issue the final EHCP as quickly as possible;
• Where the council does not agree the suggested changes it may still issue the final EHCP;
• In any event the council should issue a final EHCP to the parent and any school named within 8 weeks of sending proposed amendments to the parents or young person. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so. (SEND Regulations 2014 regulations 18-22)
23. Recent caselaw says councils must, from March 2022, send the parent or young person the final amended EHC Plan within a maximum of 12 weeks of the annual review meeting. It says councils must send the decision letter alongside any proposed changes to the EHC Plan within four weeks of the review meeting and issue a final plan no later than eight weeks after the decision letter is sent. (R (L, M, and P) v Devon County Council [2022] EWHC 493)

Transport

24. The Council’s Post-16 Transport Policy Statements for academic years 2021/2022, 2022/2023 and 2023/2024 say:
• Students with learning difficulties and/or disabilities who believe they may be eligible for transport assistance should apply using the application form available on the council website once an offer of a place at school/college has been accepted;
• If possible, applications should be submitted by the end of June for the new academic year commencing in September;
• If the application is not submitted before the end of June the council cannot guarantee that any transport support agreed will be available for the start of the course in September.

Preparation for adulthood and transition to adult social care

25. Councils must ensure that any review of an EHC Plan from Year 9 includes a focus on preparing for adulthood. Transition planning must be built into the revised EHC Plan and should include:
• Support to prepare for higher education and/or employment;
• Support to prepare for independent living;
• Support in maintaining good health in adult life;
• Support in participating in society. (SEND Code of Practice 2015 paragraphs 8.9 and 8.10)
26. Councils must carry out an adult care transition assessment where there is significant benefit to a young person or their carer and they are likely to have needs for care or support after turning 18. There is no set age for carrying out transition assessments, but they must take place at the right time for the individual. (SEND Code of Practice 2015 paragraph 8.57)

What happened

Background

27. Y is 24 and is autistic. In December 2014 the Council transferred Y’s SEN statement into an EHC Plan.
28. In September 2015 Y started attending a further education college (the College).
29. In February 2016 SLT team discharged Y as it did not consider Y needed targeted therapy. Two years later the SLT referred Y to the Adults with Learning Disability services.
30. In summer 2020 Y passed his General Certificate Standardised Exams (GCSEs) in English and Maths. During an Annual Review in December 2020 Supported Internship course was discussed but discarded as an option due to Y’s anxiety. The attendees of the Annual Review meeting decided to postpone a discussion with Y on his progression in the College or employment options until later in the year.
31. At the beginning of September 2021 the Council was making a decision on Y’s application to study another level three course at the College. The panel members noted the Council would not normally fund a second level three course. The panel decided to allocate for Y a social worker from a transition team, who would undertake an assessment to support Y’s transition to Adult Social Care. The College offered Y an opportunity to study a course to develop his independence skills around cooking, travelling independently and preparation for work.
32. In the autumn of 2021 Y’s anxiety increased. Miss X reported the deterioration of Y’s mental health difficulties.

Education

33. In mid-October 2021 a meeting was held to review Y’s EHC Plan. The attendees discussed the possibility of Y studying another level three course, after he had completed one a year before. It was explained that due to the funding rules colleges would not normally offer another level three course unless it was completely different, which was not the case for Y.
34. At the beginning of November the Council told Miss X it would amend Y’s EHC Plan. It asked for the contact details of professionals supporting Y to request information from them. The Council also asked for Miss X’s and Y’s views.
35. In February 2022 an Educational Psychologist (EP) carried out Y’s assessment and provided the Council with her report in mid-March. Following Miss X’s comments the Council sought further advice from the EP and the College. At the end of March the Council sent Miss X its proposed amendments to Y’s EHC Plan.
36. In April the professionals involved in supporting Y discussed with the College staff possible ways of meeting Y’s needs.
37. In May the Council’s OT completed an assisted living assessment for Y, the results of which were included among the proposed amendments to Y’s EHC Plan.
38. In May and June 2022 further communication about amendments to Y’s EHC Plan took place between the Council and Miss X. At the end of May the Council told Miss X it was amending Y’s EHC Plan rather than carrying out a reassessment of his SEN.
39. The Council issued Y’s final amended EHC Plan in the second week of July. It told Miss X she could appeal to the SEND Tribunal if she was not happy with the Sections B, F and I of the plan. She could also ask for the Tribunal’s recommendations about the health and social care parts of the EHC Plan.
40. When expressing her views for the EHC Plan Miss X stated that COVID-19 had a very negative affect on Y. Miss X was concerned about the lack of health support for Y’s eating difficulties and mental health. He was not ready for a work placement, she said, as he needed to regain his confidence and routine. Completing a level three course in line with Y’s interests would be the best option for him.
41. The Council named the College in Section I of Y’s EHC Plan on the understanding that Y met criteria specified in the offer letter. Although the Council identified some outcomes for Y’s language and communication and physical and sensory needs, the provision to meet Y’s needs in these areas were to be delivered by the College staff rather than through targeted interventions from therapists.
42. From September 2022 Y started attending the College again, accessing another level three course following his preference. As Y found it hard to re-engage with education, professionals decided to remove the assessment elements of the course.
43. Miss X commissioned privately a SLT who completed Y’s assessment in December 2022 and January 2023.
44. The Council held an Annual Review meeting for Y at the end of March 2023. The Council based amendments to Y’s EHC Plan on the private SLT advice and OT sensory assessment carried out in May 2023.
45. In September 2023 Y started a course in the College with the aim to develop his independence skills. This was the same course the Council offered to Y in September 2021.
46. The Council issued Y’s final amended EHC Plan at the end of October 2023.

Transport

47. In mid-June 2022 Miss X applied for a mileage allowance to take Y to the College from September 2022. The Council agreed to this form of transport assistance at the beginning of August, telling Miss X she would be contacted by the Passenger Transport Team once the arrangements are made.
48. In mid-August 2023 Miss X applied for a taxi transport for Y for the academic year 2023/2024. She said she had made a transport application before but had not been able to complete it as she did not receive an application form, which had been promised to her. Miss X said she had to use an old form.
49. At the end of August the Council confirmed Y’s eligibility for free home to school transport and told Miss X she would be contacted by the Passenger Transport Team with the details of the arrangements.
50. At the meeting in October Miss X raised concerns about the lack of transport for Y. In mid-November Y’s SEN officer asked the College to send Y’s timetable to the Passenger Transport Team.

Analysis

Updating Y’s EHC Plan from 2014 until July 2022

51. For the reasons explained in the paragraph ten of this decision I did not investigate the events which happened before October 2021. Following an Annual Review in autumn 2021 the Council amended Y’s EHC Plan in line with the professional advice it received. If Miss X was not happy with any amendments, she could have appealed to the SEND Tribunal.

Continuing Y’s SLT support beyond school year 2017/2018

52. The Council must deliver special educational provision included in Section F of a child or young person’s EHC Plan. Any health provision included in Section G of an EHC Plan should be delivered by the health services rather than the Council.
53. Section F of Y’s EHC Plans issued in December 2014 and July 2022 did not include any provision to be delivered by the SLT service. I did not find, therefore, any failings with the Council for non-delivery of special educational provision.
54. Following an Annual Review of Y’s EHC Plan in October 2021 the Council decided to amend the plan. When sending Miss X an amended final EHC Plan in July 2022 the Council told her of Y’s right to appeal Sections B, F and I and to ask for the Tribunal recommendations for health and social care sections. At this time Miss X could have challenged the Council’s position on a SLT package needed by Y.

OT support

55. In Y’s EHC Plan of December 2014 there was no OT involvement specified for Y. Following an Annual Review in October 2021 and social worker’s referral, an OT carried out an assisted living assessment. The Council included the outcomes of this assessment in Y’s amended EHC Plan issued in July 2022. When amending the EHC Plan the Council followed the professional advice.
56. I did not find any fault in the way the Council supported Y’s OT needs as until May 2023 there is no evidence of professional recommendations for a direct OT involvement. As mentioned in paragraph 54 above, Miss X could have appealed Section F of Y’s EHC Plan after the Council issued Y’s final EHC Plan in July 2022.

Support for Y’s eating disorder

57. Any interventions to address Y’s eating difficulties would need to be provided by the health services and would be included in Section G of Y’s EHC Plan. When told of Y’s difficulties in this area, the Council repeatedly asked Miss X for medical evidence of Y’s diagnosis. In November 2022 Y’s social worker asked Y’s GP for a referral to a dietician.
58. I do not consider the Council was at fault for not supporting Y’s eating difficulties when in education in view of the lack of medical evidence and the Council’s attempts to get it.

Compliance with the statutory timescales for SEN reassessment following Annual Review in 2021

59. When communicating with Miss X in May 2022 and in its response to Miss X’s complaint the Council stated it had decided to amend Y’s EHC Plan rather than to reassess Y’s SEN. These are different processes with different timescales.
60. The law says a council should carry out a reassessment of young person’s needs at the request of this person, their representative or an educational institution which this young person attends, unless it has carried out an assessment within the last six months or it is not necessary. The Council can at any time decide it is necessary to carry out a reassessment.
61. I have not seen any evidence that Miss X, Y or the College asked for a reassessment of Y’s needs. The Council’s position has consistently been that no reassessment took place. I therefore conclude that following an Annual Review in October 2021 the Council decided to amend Y’s EHC Plan and for that purpose sought advice from an EP. Such understanding is also supported by the Council’s letter sent to Miss X at the beginning of November 2021, in which the Council told Miss X it had decided to amend Y’s EHC Plan.

Annual Review timescales

62. At the time of Y’s Annual Review in October 2021 the law said when amending EHC Plans councils should act without delay. They should issue an amended final EHC Plan within eight weeks from sending proposed amendments to the parents or young people.
63. The Council sent proposed amendments to Y’s EHC Plan to Miss X at the end of March 2022. Having considered the need for an EP advice the Council could not send the amendments before it had received this advice in mid-March. After receiving the EP advice, the Council acted without delay.
64. The Council issued Y’s final EHC Plan in the second week of July 2022. It should have issued it within eight weeks, so by the end of May. The delay of around six weeks is fault but it did not cause a significant injustice to Y or Miss X. In June Y already knew the Council decided to agree for him to complete another level three course in the College and Miss X applied for transport for September 2022. Besides the delay was not long enough to cause injustice.
65. The Council failed to carry out Y’s Annual Review in October 2022, which is fault. The Council reviewed Y’s EHC Plan at the end of March 2023, so the review was delayed by five months. This fault caused injustice to Y as in the autumn of 2022 he was struggling to engage with learning in the College and his mental health and presentation declined. It is likely that reviewing Y’s progress towards his outcomes at this time would have helped in finding better support for him. Miss X was distressed and spent much time communicating with the Council to get sufficient support for Y.
66. In its response to Miss X’s complaint the Council said it would track more rigorously scheduling of Annual Reviews to ensure they take place within twelve-month period.

Ensuring Y’s representative attended Annual Reviews

67. In October 2021 Miss X attended a meeting to review Y’s EHC Plan. I did not find any evidence the Council failed to allow Y and Miss X as his parent to actively take part in the review of his EHC Plan.
68. As explained in paragraph ten I did not investigate any earlier reviews.

Providing Y with school transport

69. I investigated the way the Council dealt with Miss X’s transport applications in 2022 and 2023.
70. I did not find fault in the way the Council considered Miss X’s transport application in 2022, as following her application from June it made the eligibility decision in August, in time to make arrangements for September. The Council provided the evidence it had paid mileage allowance to Miss X for the transport to and from Y’s College in 2022/2023.
71. In autumn 2023 the Council delayed making transport arrangements for Y. After confirming at the end of August Y’s eligibility for taxi to take him to and from the College, there was a delay in the internal communication between teams, which meant that only in mid-November Y’s timetable reached the team responsible for making specific travel arrangements. This was fault. It caused the injustice to Y as he could not use transport to which he was entitled. The Council’s fault also caused injustice to Miss X as she had to provide transport to Y during the delay.

Carrying out due diligence for the high needs funding process

72. The Council provided funding to the College in accordance with the cost of Y’s course and provision included in his EHC Plan. Miss X complained that the funding provided to the College was not enough to support Y.
73. I did not find the Council at fault for the following reasons:
• I have seen no evidence the College applied for extra funding for Y, so the Council would have been right to assume there is no need for extra funds;
• If Miss X had been concerned about the level of Y’s support, she could have requested amendments to his EHC Plan and, in case of a disagreement, could have appealed to the SEND Tribunal;
• We cannot look at any concerns about the way the College used the funding for Y;

Agreeing for Y to attend another level three course in his college from September 2021

74. The decision about Y’s course of education from September 2021 is outside the scope of my investigation. I can, however, see the Council failed in the overall planning for Y’s transition into adulthood, which is explored below. The planning for Y’s education was part of it.

Preparation for adulthood and transition to adult social care

75. As explained in paragraph 26 of this decision there is no specific date for carrying out an adult care transition assessment, but it must take place at the right time for the individual. Y was finishing his level three course in the academic year 2020/2021. At the Annual Review in December 2020 the attendees agreed a progress of Y’s education would be discussed with him in the spring of 2021. With Y being 21 this would seem the right time to carry out a transition assessment to ensure a comprehensive planning to prepare him for his adult life. This did not happen.
76. The Council failed to carry out this assessment in early 2021. The assessment started following Y’s Annual Review in October 2021 and was completed in February 2022. During the assessment Y’s social worker referred him for an OT assisted living assessment and identified the need for the services from the Care Provider. In due course the College agreed for Y to attend another level three course from September 2022. Y did not engage with the Care Provider and struggled to access level three course in 2022/2023.
77. The Council’s delay in carrying out a transition assessment for Y is fault. It is not possible to say how Y’s situation would have been different if the Council had carried out his transition assessment earlier. When Y started another level three course in the College in September 2022, he could not fully engage and the assessment elements of the course were taken out. Although Miss X says Y’s staying at home in 2021/2022 was extremely detrimental to him, we have the evidence that since COVID-19 Y had struggled to regain his previous levels of engagement with education so cannot be certain that Y’s difficulties were linked to the Council’s failings.
78. The injustice caused to Y and Miss X by the delay in a transition assessment, therefore, is uncertainty of what might have happened if the Council had carried out a transition assessment in the spring of 2021.
79. In its response to Miss X’s complaint the Council acknowledged its failings with preparing Y for adulthood and offered a financial payment of £200 both to Y and Miss X. I do not think this payment is enough in view of the distress experienced by them.

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Agreed action

80. To remedy the injustice caused by the faults identified, the Council agreed to complete within four weeks of the final decision the following:
• apologise to Miss X and Y for the injustice caused to them by the faults identified;
• pay Miss X an equivalent of a mileage allowance Miss X would have received for the transport provided to Y to and from the College from the beginning of September 2023 until the date when the Council started providing transport to Y;
• pay Y and Miss X £300 each in addition to £200 already offered by the Council for their distress caused by the delays in Annual Review in 2022 and delays with the transition assessment;

The Council will provide the evidence that this has happened.

81. The Council also agree within three months of the final decision to:
• Provide the evidence of monitoring timeliness of annual reviews, as suggested in its response to Miss X’s complaint;
• Improve communication between the SEN team and the transport team to ensure there are no delays in making transport arrangements once a child’s or young person’s eligibility is established;
• Senior leaders of the Children and Education and Adult Social Care departments will review the Council’s process for deciding when a transition for adulthood assessment should be carried out to ensure that for every young person it happens at the right time.

The Council should provide us with evidence it has complied with the above actions.

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Final decision

82. I uphold parts of this complaint. For the reasons explained in the Analysis section I found fault in the way the Council carried out Y’s Annual Review and his transition assessment. I also found fault in the way the Council made transport arrangements for Y to attend his college. Some of the Council’s faults caused injustice to Y and Miss X. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman