Summary: Mr X complained about the way the Council reviewed his Education, Health and Care (EHC Plan) and that it failed to deliver the special education provision in his Plan or provide him with an education. We have not found fault by the Council regarding the provision of education or the special education provision. We have found fault by the Council in failing to share information and consider support for Mr X during, and its delay in, the review of his EHC Plan, causing him injustice. The Council has agreed to remedy this by apologising to Mr X, making a payment to reflect the upset this caused, and service improvements.

The complaint

1. I am calling the complainant Mr X. His complaint has been brought to us on his behalf by his representative, Mrs Y.
2. Mrs Y says the Council failed to support Mr X appropriately regarding:

• his SEN provision, education and his EHC Plan in the period from December 2020 to January 2022;
• attendance at school and wishes about his education from December 2020 to September 2021; and
• action to prevent him from being Not in Education, Employment or Training, in the period from December 2020 to January 2022

3. Mrs Y says, because of these failures, Mr X’s wish to remain at his existing school and the likelihood of his care placement breaking down were not properly considered, leaving him at risk because of his vulnerability. Mr X’s wellbeing and education have been affected as a result.

The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. I spoke to Mrs Y, made enquiries of the Council and read the information Mrs Y and the Council provided about the complaint
8. I invited Mrs Y, Mr X and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

The Education Act 1996

9. Section 19 of the Education Act says:

• A local authority shall make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless such arrangements are made for them;
• This provision does not apply where the child will cease to be of compulsory school age within the next six weeks and does not have any relevant exams to complete; and
• A local authority may make arrangements for the provision of suitable education otherwise than at school for those young persons who, by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless such arrangements are made for them

10. A young person is someone aged between 16 and 25. A young person is over the compulsory school age at the end of the academic year in which they turn 16.

Education, Health and Care Plan (EHC Plan)

11. A child or young person with special educational needs may have an EHC Plan. This set out their needs, the support required to meet these needs and the name of the school or post-16 institution they will attend.
12. Their local authority (council) has a duty to secure the specified special educational provision for the child or young person set out in the EHC Plan. (Children and Families Act 2014 section 42)

The special educational needs and disability code of practice (the Code)

13. The Code provides statutory guidance about the principles and procedure councils should follow when working with and supporting children and young people with special educational needs (SEN) or disabilities.
14. The Code includes the following guidance:
1. Councils must ensure the EHC Plan review at year 9 and every review thereafter includes a focus on preparing for adulthood. They should also ensure children and young people have the support they need (such as advocates) to participate fully in this planning and make decisions;
2. A young person over the compulsory school age has the right, in place of their parents, to make requests and decisions under the Children and Families Act 2014. This includes the right to:

• make representations about the content of their plan;
• request that a particular institution is named in their plan; and
• appeal to the First-Tier Tribunal (Special Educational Needs and Disability) (the SEND Tribunal).
3. For young people moving between post-16 institutions, a review of their EHC Plan should normally be completed by 31 March, and in all cases, at least 5 months before the transfer takes place;
4. If a young person does not meet the entry requirements for their chosen course or changes their mind about what they want to do, the council should review the plan with them as soon as possible. Alternative options should be agreed and new arrangements put in place as far in advance of the start date as practicable.
5. The Council must send details of any proposed changes to an EHC Plan to the child’s parent or young person and allow them at least 15 days to comment on and make representations about these changes. This includes requesting a particular school or institution be named in the plan.

Looked after Children

15. A Looked after Child (LAC) is any child subject to a care order or accommodation away from their family by a local authority (council) under section 20 of the Children Act 1989.
16. Once a young person is 18, they are no longer legally in care or looked after and their fostering arrangement no longer applies. But in certain circumstances a “staying put” arrangement can be agreed allowing the young person to continue living with their foster carer post-18.

What happened

17. I have set out a summary of the key events below. It is not meant to show everything that happened.
18. Mr X has SEN, summarised as social and emotional difficulties and having suffered developmental trauma related to periods of inadequate care in his childhood. He has an EHC Plan.
19. As at December 2020, Mr X was a Looked After Child, living with a foster carer. He attended the school named in his EHC Plan and was studying for his GCSE examinations in the summer term of 2021. He would be 18 in September 2021.

December 2020

20. Mr X’s care plan and pathway plan were updated, following his social worker’s visit with him. It was recorded Mr X was thinking about starting a graphics or design course in September 2021, had a first choice of college in mind and would make an application in the new year. He could continue living with his foster carer post-18, through a staying put agreement, if things worked out.
21. The annual review meeting for Mr X’s EHC Plan was held. This was attended by staff from his school, his foster carer and social worker. Mr X did not attend. The meeting notes say:

• Mr X had expressed an interest in graphic design and indicated he wanted to attend college, but at present appeared to be undecided;
• They needed to establish whether he would be leaving in 2021 or 2022, so his plan could be tailored to the placement he chose; and
• Mr X’s school, foster carer and social worker would liaise about his decisions and plans.

22. Mr X’s appointed Personal Advisor (PA) and social worker carried out visits with him.

January 2021 to March 2021

23. On Mr X’s social worker visit in January, they discussed concerns about him not attending school each day, although his foster carer was encouraging him to do so.
24. Mr X’s pathway plan was updated in February. This noted he sometimes missed school and needed encouragement to continue. He was looking forward to leaving school and starting college, and considering a design course at college A.
25. The note of Mr X’s social worker’s visit with him in March says:

• There were concerns about his engagement with education. They had discussed engaging fully, his GCSE’s and college next year;
• Mr X had chosen not to go into to school during the current lockdown. They had discussed whether he had any issues with school. Mr X said he couldn’t think of a reason why he was reluctant to go in;
• He was not sure now whether he wanted to go to college; and
• His engagement with school would be monitored. A meeting at school was coming up.

26. A meeting of the professionals working with Mr X was held on 15 March to discuss the concerns about his engagement and attendance at school. His foster carer also attended the meeting. Mr X did not attend. The meeting notes include that:

• Mr X had told his careers officer he didn’t want to go to college now. His foster carer reported it was difficult to get any information from Mr X about his wishes because he did not want to discuss future plans;
• They considered the effect on Mr X’s foster placement if he was not in education or training post-18; and
• There should be a further meeting with Mr X to try to discuss options with him.

27. A Leaving Care Panel Meeting was held on 25 March to discuss Mr X’s leaving care plan. The meeting notes include that:

• He was not currently engaging in education. A plan had been made for him to attend part-time following the meeting on 15 March;
• His foster placement was going well and staying put would probably be his best option. But he would have to engage in education or training post-18 to be able to do this; and
• His PA would refer him to the 14-19 Learning Skills and Employment (14-19) team.

April to May 2021

28. The SEN team consulted with college A about a place for Mr X in September 2021.
29. The notes of his social worker’s visits with Mr X say:

• In April, he was attending school again and thinking about what he wanted to do next year but had not yet decided. If he went to college, it was likely to be college A; and
• In May, Mr X had visited college A. He had gone along with the school’s application for a place there. He had not been engaging so well with school in recent weeks. They had discussed Mr X’s post-18 accommodation options. These included staying put with his foster carer or support to move somewhere independent. His PA would join the social worker on the next visit to discuss his options in more detail.

June 2021

30. Mr X’s school reviewed his personal education plan. This recorded his decline in attendance, and the school’s offer to support him to re-engage and achieve the GCSE grades he needed for college.
31. The Council issued Mr X’s draft amended plan. This named his placement from September 2021 as college A.
32. The note of his social worker’s visit with Mr X says:

• He had a place at college A but said his preference was to get a job. The social worker would look at options and the 14-19 team would help with this;
• Mr X could stay with his foster carer post-18 under a staying put arrangement. Other options would be more independent or step-down accommodation; and
• He had said he wanted to continue living with his foster carer but would think about the step-down option.

33. A panel meeting was held to discuss Mr X’s leaving care plan. The meeting notes included that they considered:

• Staying put as a short-term option until alternative accommodation was found; and
• Mr X had changed his mind about college A and wanted to get a job. The 14 – 19 team would support with this;

July 2021

34. The Council issued Mr X’s final EHC Plan. Section F of the Plan set out his special education provision which was to be provided by his college. It named college A as his placement from September 2021.
35. The Panel met again. The meeting notes include that:

• The original plan for Mr X to stay on with his foster carer was subject to him continuing in education or training. Mr X did not want to go to college. Attempts would be made to identify an activity which would allow him to stay with his foster carer; and
• A move-on plan from his current school and a review of his EHC Plan were needed.

August 2021

36. Mr X’s EHCP co-ordinator contacted him to confirm his GSCE grades and enrolment at college A.
37. Mr X told his PA he would not take up his college place and wanted to work. They discussed job options. His PA would come back to him with a selection of opportunities.
38. The notes of the social worker’s visit with Mr X confirm he was not going to college. The 14-19 team had provided him with details of training and job options. Mr X said he didn’t know what he wanted to do. Mr X could stay with his foster carer for a while post-18. His foster carer would only consider a staying put arrangement if Mr X was in education, employment or training.
39. A Pathway Planning Review Report was completed. This recorded:

• Mr X could stay with his foster carer for a while post-18 but would need to be in education or training;
• His PA was completing an application for other suitable accommodation and he could continue to stay with his foster carer while other options were explored. His PA would visit possible accommodation options with Mr X; and
• The plan of permanence was for Mr X to live semi independently when he was ready.

40. A panel meeting was held on 26 August. The meeting notes say:

• Mr X did not want to attend the meeting. He was asked again during the meeting if he wanted to attend even for a few minutes, but declined;
• A staying put arrangement had been agreed which would be reviewed monthly;
• There was a need to progress a move to other accommodation as soon as possible; and
• Mr X wanted a job and was being provided with support with this.

September 2021

41. Mr X had his 18th birthday.
42. His social worker completed a final visit. Mr X confirmed he wanted a job, and not college but was still undecided about what he wanted to do. His PA visited him a number of times to discuss support with job and training options.
43. Mrs Y contacted the Council on Mr X’s behalf. She said:

• Mr X had not been well supported with his decisions. Because of this he had agreed to leave school without understanding the position;
• He felt the decision to leave school was largely made for him; and
• He wanted to go back to his school.

44. Mr X’s EHC Plan co-ordinator told Mrs Y, Year 11s at the school usually progressed to its 6th form and this was an option for Mr X. But the Council would need to consult the school.

October to December 2021

45. The Council discussed Mr X’s request to go back to school with him. The SEN team agreed to consult with the school about the options.
46. The school had a meeting with Mr X about his request.
47. Mr X’s PA visited him. He told her he wanted to move to live with a friend’s family. It was agreed his accommodation with his foster carer would be kept open for two weeks following his move in case his plans changed.
48. On 1 December the school offered Mr X a place from January 2022, with a transition plan starting in the next two weeks.

Mr X’s complaint to the Council

49. In December 2021, Mrs Y complained, on Mr X’s behalf, the Council had failed to:

• carry out an assessment of Mr X’s needs;
• consider his transition to adulthood; and
• secure his educational placement.

50. The Council said in its response:

• It had provided Mr X with an extensive range of advice and support to ascertain his wishes, but he had not engaged with the opportunities presented to him;
• There had been missed opportunities between Children’s Services and its SEN team when Mr X told his PA he didn’t want to go to college. This information should have been shared to allow SEN to consider whether his EHC Plan should be continued or ceased; and
• It did not uphold Mr X’s complaint he had not been properly supported to make decisions.

51. Mrs Y and Mr X were not satisfied with the Council’s response and brought the complaint to us.

My findings – was there fault by the Council causing injustice?

Complaint (a) Mr X’s EHC Plan review

52. The review of Mr X’s EHC Plan should have been completed within the timescales set out in the Code, that is by 31 March 2021. It was not completed until June 2021, when the Council issued the draft amended Plan proposing college A as his placement from September 2021. I consider the delay in completing the review was fault.
53. I have not seen any evidence the Council considered whether Mr X had the support he needed to participate in the review of his EHC Plan in preparation for adulthood, as required by the Code. This was a crucial stage for Mr X, as choices he made about his education, employment and training would determine whether he could continue living at his foster placement post-18. And as a young person he now had the right to make his own representations, requests, and appeals about his EHC Plan. In my view the Council’s failure to consider whether he needed additional support, such as an independent advocate was fault.
54. Had the Council considered support for Mr X and provided him with an advocate, Mr X would have had the opportunity of help with expressing his wishes about his education from September 2021 at the review meeting in December 2020 and in response to the draft amended plan.
55. The Council has accepted it failed to share updated information about Mr X’s thoughts about his education placement from September 2021 with its SEN team. He had told his careers officer by March 2021 he did not want to go to college A. As this was not passed on, his EHC Plan co-ordinator consulted with, and named, college A as Mr X’s placement.
56. I consider the failure to share information was fault. Had SEN been told Mr X had changed his mind this should have prompted a further review.
57. Mr X says he feels the decision for him to leave school after his GCSE’s was largely made for him. I haven’t seen any evidence of discussions with Mr X about staying on at school or his thoughts about this before September 2021.
58. I do not consider I can say now, had it not been for the delay in completing the review, the failure to consider support for Mr X with the EHC Plan review process and the failure to share information about his wishes, Mr X would have decided, and expressed a wish, to stay on at school before September 2021 and not missed a term’s education.
59. On this basis, I do not consider I can find it was fault by the Council which resulted in Mr X not attending his college placement.
60. But in my view, because of the faults identified in paragraphs 52, 53 and 56, Mr X lost the opportunity to be supported by an advocate with expressing his views and wishes about his education placement during the review process. And the opportunity to have the annual review and any further reviews completed in a timely way in advance of the start of the new academic year in September 2021.
61. I consider this caused Mr X uncertainty, upset and inconvenience.

Complaint (b) The Council failed to deliver the specified special education provision in Mr X’s plan or provide him with education in the period from September 2021 to January 2022

62. The Council’s duty under the Children and Families Act was to secure Mr X’s special education provision. In my view it did so by arranging a placement for Mr X at college A, as named in his Plan.
63. Mr X did not take up his place but the special education provision at college A, as set out in his Plan, was secured and made available for him by the Council. I do not consider the Council failed to secure Mr X’s special education provision and I have not found fault by the Council in this respect.
64. As Mr X was not of compulsory school age as at September 2021, I do not consider the Council had a duty to provide him with a suitable education otherwise than at school for the period from September 2021 to January 2022 when he was out of education. I have not found fault by the Council in this respect.

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Agreed action

65. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:

• apologise to Mr X for the delay in completing the review of, and sharing information relevant to, his EHC Plan in 2021, and failing to consider his need for support to enable him to participate fully in the EHC Plan review process; and
• pay Mr X £250 to acknowledge the uncertainty, upset and inconvenience caused by the loss of his opportunity to participate fully in the EHC Plan review process, and have it completed in a timely manner. This figure is a symbolic amount based on the Ombudsman’s published Guidance on Remedies.

66. Within three months from the date of our final decision, the Council should remind officers in its:

• Children’s Services and SEN teams working with young people with EHC Plans transitioning to adulthood of the need to share information about their plans and any changes;
• SEN team of the timescales for completing EHC Plan reviews for young people moving between post-16 institutions; and
• SEN team of the requirement in the Code to ensure young people have the support they need to participate fully in their EHC Plan planning and decision making in preparation for adulthood.

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

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Final decision

68. I have not found fault by the Council in respect of complaint (b). I have found fault by the Council in respect of complaint (a) causing injustice. I have completed my investigation on the basis the above action is a suitable way to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman