Summary: Mrs M complains about her son B’s education. There were problems with planning for B’s transfer to post-16 education in September 2022, and the Council failed to arrange suitable provision between September 2022 and April 2023. The Council has offered a suitable remedy.

The complaint

1. Mrs M complains about her son B’s education.
2. In particular, Mrs M complains:
• the Council did not arrange all the transition planning in B’s Education, Health and Care (EHC) Plan in time for his transfer to post-16 education;
• there were delays amending B’s EHC Plan following the breakdown of his placement in September 2022; and
• B did not receive all the (special educational) provision in his EHC Plan between September 2022 and April 2023.

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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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)

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How I considered this complaint

5. The Council responded to Mrs M’s complaint at both stages of its corporate complaints procedure. At stage two, the Council appointed an independent investigator who wrote a detailed report. The investigator upheld most of Mrs M’s complaints. The Council accepted the investigator’s findings, apologised and offered a financial remedy.
6. I have focussed my investigation on the areas of disagreement between Mrs M and the Council following the independent investigation. I have considered information provided by Mrs M and information provided by the Council. I invited Mrs M and the Council to comment on my draft decision.
7. This statement sets out the key facts and does not attempt to cover everything that happened or every complaint Mrs M made, nor does it refer to all documents considered.

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What I found

8. B has an Education, Health and Care (EHC) Plan maintained by the Council.
9. Our previous investigation considered events between September 2021 and July 2022. This was B’s last year at school before moving to post-16 education.
10. In preparation for B’s transfer to post-16 education, the Council issued a final amended Plan on 25 April 2022. As this was a transition year, the Council should have issued the Plan by 31 March. The Plan was late. We considered the delay in our previous investigation and recommended a remedy which the Council accepted.
11. The Council named a local college in the Plan.
12. B attended a transition day at the college in May 2022, but the course was not suitable. The college suggested alternative courses, but these, too, were not suitable and did not match B’s profile or aspirations. Mrs M informed the Council and said she was concerned B might not have a placement for September 2022. A few days later, in late May, Mrs M said B should be educated otherwise than at school or college (EOTAS) and proposed the following:
• 2 days per week with provider A;
• 0.5 days per week sensory needs support with provider B; and
• 2.5 days per week with provider C to focus on maths and English.
13. Mrs M was unhappy with the 25 April 2022 Plan and had begun mediation. Following mediation, the Council issued a new final amended EHC plan on 22 June 2022. Consistent with Mrs M’s request for EOTAS, the Plan did not name a specific college for B’s post-16 education. However, providers A and C are not mentioned in section F where provision should be set out, and the Plan refers to ‘college’, lessons, teachers and staff.
14. Although not an approved college, provider C is a well-established specialist provider of bespoke programmes for students unable to access a conventional college or sixth form placement due to complex needs.
15. The Plan set out transition support including taster visits, a tour of the new setting, introductions to course staff and liaison between settings. The Plan said B should have three half-day “transition experiences” to familiarise himself with the new setting and staff.
16. The plan also set out some specific actions to support B’s transition to the new setting. This included an OT review of the classroom environment to assess where Y should sit, which should happen before Y started his course.
17. This investigation concerns what happened next.

Complaint a) transition support

18. B started his post-16 education with provider C in September 2022, but did not return after his first day.
19. Mrs M complains the Council failed to arrange the transition support specified in B’s EHC Plan. She believes that if it had been arranged, it would have been clear the provision was not suitable and B could have looked for alternative provision.
20. The Council says B’s school provided training to the staff at provider C, and the Council funded specialist training in speech, language and communication in preparation for B’s transfer.
21. Mrs M acknowledges the efforts made by the Council and the SALT at B’s school, but complains there was no liaison between his school and the new provision, and B only found out about his teachers and timetable the day before he was due to start.
22. I see from Mrs M’s correspondence with provider C that transition arrangements intended to familiarise B with the setting and the staff – visits and introductions – were arranged at the very last minute and were incomplete. Mrs M and B visited the “empty” venue during the holidays, but Mrs M says B was unable to see the provision “in action”, meet the staff or learn about his timetable. She says this undermined his confidence.
23. B attended the provision for just one day.
24. Mrs M believes it would have become clear much sooner the provision was not suitable if the transition support had been provided as described in B’s Plan.
25. It is clear that despite considerable effort on the part of those involved, B did not receive the extended transition support required by his EHC Plan. This is fault.
26. However, I cannot say whether B’s transition would have been a success, or whether it would have become clear much sooner the provision was not suitable if the transition support had been provided as described in B’s Plan.
27. My job is to consider what happened, not to speculate about what might have happened. I now consider what happened following the breakdown of B’s placement at provider C.

Complaint b) delays amending B’s EHC Plan following the breakdown of the placement in September 2022

28. Mrs M complains about delays amending B’s EHC Plan following the breakdown of his placement in September 2022. The Council issued a draft Plan on 23 September 2022 and a final amended Plan on 22 December 2022.
29. The Council should issue a final amended Plan within 8 weeks of issuing the draft. In this case, it took almost 13 weeks. Mrs M says she was told B’s Plan caught up in a backlog. The independent investigator upheld Mrs M’s complaint. I agree with the independent investigator’s findings. The delay was fault.
30. Mrs M also complains about the timing of the annual review of B’s EHC Plan. Mrs M and the Council disagree about when the annual review was due. Mrs M says it was due in December 2022. The Council says it was due in February 2023. In the end, Mrs M and the Council agreed to a short delay so B could visit the school he now attends.
31. The overall result was that there was considerable delay. B was without a school or college place from the beginning of September 2022, when his placement broke down, until April 2023. And this was despite the Council conducting a review and issuing an amended Plan in December 2022. The delay was fault.
32. The Council has acknowledged B did not receive suitable education during this time. I will consider B’s education between September 2022 and April 2023 next.

Complaint c) (special educational) provision between September 2022 and April 2023

33. B left provider C in September 2022. The Council proposed he attend provider A for three days instead of two, provider D for one day, and the Council would arrange a tutor for half a day every fortnight to help him prepare for an English exam. English tuition started on 25th January 2023, and B started at provider D on 23rd March 2023.
34. It was subsequently agreed B would pursue his post-16 education at an independent special school where he started in April 2023.
35. Mrs M complains B did not receive much of the provision in his Plan until he started at the independent special school in April 2023.
36. Mrs M set out in detail the lengths she, and the Council, went to in their efforts to try to secure Occupational Therapy and Speech and Language Therapy for B. I have not repeated the detail here, but I acknowledge their efforts and frustration.
37. The independent investigator upheld Mrs M’s complaints B did not receive the Occupational Therapy and Speech and Language Therapy in his Plan. The Council accepted the independent investigator’s findings.
38. Mrs M complains B did not receive other special educational provision in his Plan. B’s Plan sets out detailed teaching strategies, many of which could only be delivered in a classroom or college setting.
39. The independent investigator partially upheld Mrs M’s complaint B did not receive other special educational provision in his Plan. The independent investigator acknowledged there were ‘gaps’ in B’s provision, but concluded the Council had made reasonable efforts to provide alternative support. The Council accepted the independent investigator’s findings.
40. Mrs M disagrees. She believes the independent investigator misunderstood the provision B received between September 2022 and April 2023. The investigator said B received an ‘alternative educational package’. Mrs M considers the provision was inadequate. Mrs M complains about delays setting up provider D and the English tutor.
41. B received a package of alternative provision which appears to have been a ‘stop gap’ until a college place was found for him to make a fresh start in September 2023. There were significant delays organising the alternative provision.
42. The Council acknowledged that despite its efforts, and the efforts of Mrs M, the provision provided fell a long way short of a full-time college place. The Council apologised and offered a payment of £3,000 for the education and support B missed between September 2022 and April 2023. The Council offered Mrs M a payment of £500 for her trouble and distress making her complaint, and a further £250 in recognition of the delays responding to her complaint.
43. So, although the independent investigator and the Council said they “partially upheld” Mrs M’s complaint that B did not receive the provision in his Plan, the Council offered a full apology and a substantial financial remedy.
44. The Ombudsman does not use the term “partially upheld”. I uphold Mrs M’s complaint because B did not receive the provision in his EHC Plan. However, I also acknowledge the Council arranged some alternative education for B, as described in the Council’s complaint response. The Council offered symbolic payments to acknowledge the provision it arranged was less than the provision specified in B’s EHC Plan. So, I agree with the Council’s response, but not the terms in which it was expressed.

What Mrs M wants from her complaint to the Ombudsman

45. Mrs M asked us to review the complaints the Council had not fully upheld and to recommend a higher payment for the impact on B’s education.
46. I have reviewed the complaints and, as noted above, I uphold Mrs M’s complaint that B did not receive the provision in his EHC Plan between September 2022 and April 2023.
47. The Council offered a payment of £3,000 for the education and support B missed.
48. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result 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. When this is not possible, as in the case of Mrs M and B, we may recommend the Council makes a symbolic payment.
49. Our guidance says we might recommend a symbolic payment of £2,400 per term for a young person with an EHC Plan who received no education whatsoever and none of the therapies in their Plan. We would recommend a lower payment if the Council had made alternative arrangements, albeit they fell short of the requirements of the Plan.
50. I consider the Council’s offer of £3,000 is an appropriate offer for the impact on B.
51. Mrs M described the exhaustion, stress and anxiety of trying to find a college course for B. She said she has contacted almost every post-16 provider in Norfolk and Suffolk in 2022. She said her dealings with the Council were “the final straw”. She would like the council to make a symbolic payment to recognise the emotional impact on her husband and B as well as herself.
52. I do not underestimate the lengths Mrs M has been to in her efforts to find a college course and secure suitable provision for B. I do not doubt the impact this has had on all members of the family.
53. I can only consider the additional distress that was a direct result of fault by the Council. And I am only considering what has happened since August 2022. I am satisfied the Council recognised the impact of the faults in this period, including the delays in its complaint response, with the payments totalling £750 it offered.
54. As well as the personal injustice, Mrs M has placed considerable emphasis throughout her complaint on service improvement. At the end of the complaints process, she remains unconvinced the Council has ‘learnt lessons’ from her experience.
55. I am satisfied the Council has taken Mrs M’s complaints very seriously and responded at an appropriate level. I note Ofsted, the regulator, is currently inspecting the Council’s special educational needs service. Ofsted will decide whether further improvements are necessary and identify areas for action. I will not, therefore, make service improvement recommendations.

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Final decision

56. Subject to further comments by Mrs M and the Council, I intend to complete my investigation. There were problems with transition planning for B’s transfer to post-16 education, and the Council failed to arrange suitable provision between September 2022 and April 2023, but the Council has offered a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman