Summary: the Council delayed reviewing Mr C’s daughter’s education, health and care plan, failed to carry out proper transition planning and failed to carry out a social care assessment. An agreement to carry out a social care assessment, apology to Mr C and his daughter and payment to both parties is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr C, complained the Council:
• delayed reviewing his daughter’s education, health and care plan (EHCP);
• failed to put in place a transition plan for his daughter’s move to college; and
• failed to carry out a social care assessment for his daughter as recommended by tribunal.
2. Mr C says failures by the Council have caused his daughter distress, led to her missing out on provision and have contributed to her health problems.

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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)

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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and Mr C's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. 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 found

What should have happened

8. The special educational needs code of practice (the code) says the first review of an EHCP must be held within 12 months of the date when the EHCP was issued, and then within 12 months of any previous review.
9. The code says within four weeks of the review meeting, the local authority must decide whether it proposes to keep the EHCP as it is, amend the plan, or cease to maintain the plan, and notify the child's parent or the young person and the school or other institution attended. If the plan needs to be amended, the local authority should start the process of amendment without delay.
10. The code says following representations from the child's parent or the young person, if the local authority decides to continue to make amendments, it must issue the amended EHCP as quickly as possible and within 8 weeks of the original amendment notice. If the local authority decides not to make the amendments, it must notify the child's parent or the young person, explaining why, within the same time limit.
11. The code says an EHCP must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution.
12. For young people moving between post-16 institutions the code says the review process should normally be completed by 31 March where a young person is expected to transfer to a new institution in the new academic year.
13. The code says the Council has a statutory duty under Section 17 of the Children Act 1989, to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services to them. It says where an EHCP is being prepared for a disabled child or young person under the age of 18, any services to be provided under Section 2 of the Chronically Sick and Disabled Persons Act 1970 (CSDPA) must be included in section H1 of the EHCP. All other social care services, including services provided under Section 17 of the Children Act but not under Section 2 of the CSDPA must be included in Section H2 of the EHCP.

What happened

14. Mr C and his children moved into the Council’s area in 2018. The Council issued a new EHCP in 2019. Mr C appealed in August 2019.
15. Mr C’s daughter was due to start college in September 2020 and visited the college in January 2020. It was planned for further visits to take place but those visits were affected by Covid 19.
16. The tribunal considered Mr C’s appeal in December 2019 and March 2020. The tribunal made an order following the March 2020 hearing. The Council made the amendments tribunal ordered and issued a final EHCP in May 2020. By that point the annual review was already late as it should have taken place in April 2020.
17. Following receipt of the tribunal’s decision recommending a social care assessment the Council wrote to Mr C on 22 April to advise the open access youth service would carry out an updated assessment of his daughter’s social care needs. The Council told Mr C this service would work with his daughter to identify youth groups to help her develop her friendships and link in with the pastoral support team at college when she started there. The Council also said it would make a referral for a mentor which could help her access other groups she wanted to pursue and support her to feel more confident in using public transport which would help her transition to college.
18. The Council wrote to Mr C again on 25 June where it referred to its proposal to involve the open access youth service to assess his daughter’s social care needs.
19. The Council sought dates from Mr C for the annual review in July 2020.
20. On 11 August the Council told Mr C it would contact the SEN support department at the college to ask it to contact his daughter in preparation for her start at college. The Council said the college had previously offered a registration and induction day at the end of August. The Council also offered to speak to Mr C’s daughter on the phone.
21. The Council contacted Mr C again on 20 August following further contact with the college. The Council confirmed the place for Mr C’s daughter at college and referred to the college advising his daughter had not attended the interview arranged. The Council told Mr C the college’s learning support practitioner would look out for his daughter that afternoon during enrolment to talk with her and provide her with information about transition and induction. Mr C’s daughter began attending college in September 2020. The college completed a brief transition plan.
22. The Council carried out the annual review in September 2020. The Council later apologised for the delay holding the review.
23. Mr C contacted the Council later in September to report his daughter had been transformed since leaving school and had made significant progress. Mr C noted although tribunal had recommended an assessment for her health and social care needs he did not want any assessment to jeopardise the potentially significant progress she had made. By the end of September Mr C’s daughter had told the college she did not need any further support.
24. The Council sent Mr C an amendment notice, proposing to amend the EHCP on 6 October.
25. In October Mr C’s daughter was admitted to hospital, following which she was referred to the eating disorder service.
26. Mr C raised concerns about the contents of the EHCP in November 2020. Mr C asked why the Council had not carried out a social care assessment, as recommended by tribunal.
27. On 2 November Mr C suggested the Council arrange for home/online tuition until his daughter was out of danger, given the health recommendations. The clinical lead for eating disorders subsequently told the Council it had recommended bed rest and no physical exercise for Mr C’s daughter which meant she needed to be home educated.
28. In January 2021 the Council issued a final amended EHCP naming the college. Mr C has appealed.

Analysis

29. Mr C says the Council delayed reviewing his daughter’s EHCP and then delayed issuing the final plan. As I said in paragraph 8, the code requires the Council to review EHCPs each year. In Mr C’s daughter’s case that means the Council should have reviewed the plan in April 2020. The Council accepts it failed to do that and has apologised. Having considered the EHCP in place before the review and compared that to the one in place after the review there is little difference between the two plans. That suggests Mr C’s daughter did not miss out on provision due to the delay. However, Mr C’s daughter was at a crucial stage in her education as she was due to transition to college in September 2020. As I said in paragraph 12, the code requires the Council to review the EHCP by the end of March of the year in which the transition takes place. Delaying completion of the review and the later delay issuing the final plan, which I refer to in the next paragraph, meant the transition planning the Council should have undertaken as part of the review process did not take place before Mr C’s daughter transferred to college. That is fault. I outline my view on the impact of that on Mr C’s daughter’s transition arrangements later in this statement.
30. Mr C says the Council delayed issuing a final plan following the September 2020 review. The Council accepts it did not meet the timescales set out in paragraphs 9 and 10 of this statement as it did not issue the final plan until January 2021. I note the Council delayed issuing the final plan to incorporate the changes Mr C asked for to ensure he was happy with the final plan and to prevent an appeal. While the code encourages collaborative working, it should not be at the cost of adhering to the timescales. Failure to keep to the timescales is therefore fault. I am pleased to note though the Council has begun providing training to those dealing with SEN cases to ensure officers are aware of SEN practices and procedures and the need to follow statutory timescales. I hope this will improve the Council’s ability to ensure review timescales are kept to.
31. I am concerned though about the transition arrangements for Mr C’s daughter. As I said in paragraph 11, the code requires the Council to begin transition planning in the year before the transition takes place. Because the Council delayed completing the review and issuing the final plan this means it lost the opportunity to carry out proper transition planning. That is fault. The tribunal noted though that there should be a transition plan put into place for Mr C’s daughter before she started at college. I would therefore have expected the Council to put in place a transition plan irrespective of the delay in completing the EHCP. The evidence I have seen satisfies me there were some transition arrangements in place. It is also clear those transition arrangements were affected by Covid 19, which is outside the Council’s control. Those transition arrangements were developed by the college though and, having seen the document detailing the transition arrangements, the arrangements were minimal.
32. As I said earlier, I am satisfied there were minimal differences between the EHCP in place before the Council carried out the review in 2020. Given the documentary evidence shows some queries from Mr C about what courses his daughter would be taking, how often she would be attending college and for how long I consider there is some uncertainty about whether there would have been better planning for the transition and a more comfortable process for Mr C’s daughter if the review had taken place earlier. I am satisfied though that by 29 September 2020 Mr C’s daughter had told the college she no longer needed support. The documentary evidence, including correspondence from Mr C, also indicates Mr C’s daughter had settled well at college and was progressing. So, while I consider the lack of transition planning impacted on Mr C’s daughter I take into account the fact that even with limited transition planning his daughter was able to successfully transfer to college. Taking that into account I consider a suitable remedy for the failure to complete transition planning, along with the delays in the EHCP process, would be for the Council to apologise to Mr C and his daughter and pay Mr C £250 to reflect his time and trouble pursuing the complaint. The Council has agreed to my recommendations.
33. In reaching the view that Mr C’s daughter successfully transferred to college I am aware medical issues intervened which meant Mr C’s daughter could not continue to attend college after November 2020. I could not speculate though about whether those issues resulted from any lack of transition planning, particularly given the documentary evidence shows the transition was successful.
34. Mr C says the Council failed to carry out a social care assessment for his daughter, as directed by tribunal. In contrast, the Council says it offered support from the open access youth service which it made clear would involve an assessment of his daughter’s social care needs. I am satisfied the Council offered an assessment through its youth service when it wrote to Mr C on 22 April 2020. I do not criticise the Council for offering that, rather than a section 17 assessment, given Mr C had made clear he did not want to pursue child in need plans for his children. However, there is no evidence the Council put in place the arrangements for that assessment. It is now clear the Council expected Mr C to confirm whether his daughter was willing to work with the youth service before it arranged the assessment. However, the Council accepts the letter to Mr C of 22 April 2020 (and its subsequent letter of 25 June) failed to make clear his and his daughter’s agreement was necessary before the Council would proceed with an assessment.
35. If the Council’s position was that it could not proceed with the assessment without Mr C’s formal agreement I would have expected it to make that clear to Mr C. I would also have expected the Council to contact Mr C again about the assessment when he did not respond to the offer in the Council’s letter of 22 April 2020, particularly given the assessment was one ordered by tribunal. I consider failure to make the position clear to Mr C and follow up with him when he did not respond means Mr C’s daughter likely missed out on some social care provision from the youth service from April 2020 onwards. As remedy for this part of the complaint I recommended the Council liaise with Mr C to arrange an assessment through the youth service, presuming Mr C’s daughter agrees. I also recommended the Council apologise to Mr C and his daughter for not pursuing the assessment after its letter in April 2020 and pay Mr C’s daughter £350 to reflect the support she has potentially missed out on since April 2020. That amount takes into account the fact provision from the youth service would have been limited in 2020 due to the Covid 19 situation. The Council has agreed to my recommendations.
36. Mr C says the Council also failed to refer his daughter to health services for an assessment, as recommended by tribunal. I am aware tribunal suggested a mental health assessment, although this was not part of the order. I am satisfied though that when completing a review of Mr C’s daughter’s EHCP in September 2020 the Council took into account health issues. There is no evidence I have seen to suggest any medical professionals indicated the need for further health assessments. I also note when Mr C contacted the Council in September 2020 he questioned whether there was any longer a need for a health assessment as he did not want to undermine his daughter’s progress. Given those facts, and the fact tribunal did not order a health assessment, I do not consider there are grounds on which I could criticise the Council here. In reaching that view I recognise Mr C’s daughter has subsequently experienced an eating disorder which led to hospitalisation. I understand Mr C believes that issue could have been avoided had his daughter received a health assessment. I cannot comment on that as I cannot speculate about the cause of Mr C’s daughter’s eating disorder and whether that could have been avoided if the health assessment had taken place.

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Agreed action

37. Within one month of my decision the Council should:
• apologise to Mr C and his daughter;
• pay Mr C £250 to reflect his uncertainty and the time and trouble he had to go to pursuing the complaint;
• pay Mr C’s daughter £350 to reflect the likely lost social care provision in 2020; and
• send a memo to officers dealing with education, health and care plans to remind them of the need to ensure reviews take place promptly after 12 months, of the timescales for completing transition planning for those transferring to a new place of education and of the timescales required for issuing final plans.

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Final decision

38. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman