Report by the Local Government Ombudsman

Investigation into a complaint against Milton Keynes Council (reference number: 14 013 427)

27 October 2015

Local Government Ombudsman I PO Box 4771 I Coventry I CV4 0EH www.lgo.org.uk

The Ombudsman’s role For 40 years the Ombudsman has independently and impartially investigated complaints. We effectively resolve disputes about councils and other bodies in our jurisdiction by recommending redress which is proportionate, appropriate and reasonable based on all the facts of the complaint. Our service is free of charge. Each case which comes to the Ombudsman is different and we take the individual needs and circumstances of the person complaining to us into account when we make recommendations to remedy injustice caused by fault. We have no legal power to force councils to follow our recommendations, but they almost always do. Some of the things we might ask a council to do are: 

apologise



pay a financial remedy



improve its procedures so similar problems don’t happen again.

Investigation into complaint number 14 013 427 against Milton Keynes Council Contents Report summary..................................................................................................................... 1 Introduction ............................................................................................................................ 2 Legal and administrative background ..................................................................................... 2 How we considered this complaint.......................................................................................... 4 Investigation ........................................................................................................................... 5 Conclusions............................................................................................................................ 9 Decision ............................................................................................................................... 10 Recommendations ............................................................................................................... 10

Section 30 of the 1974 Local Government Act says that a report should not normally name or identify any person. The people involved in this complaint are referred to by a letter or job role.

Key to names used P – the young person who is the subject of the complaint Mrs B – P’s mother School S – the school P attended in Years 10 and 11 Schools T and U – two schools which made conditional offers of sixth form places for P College W – a further education college in the Council area

Report summary Special Educational Needs (Transition Planning) The complaint is about the Council’s failure to plan for a pupil’s transition from compulsory to 16-19 further education.

Finding Fault found causing injustice and recommendations made.

Recommendations To remedy the injustice caused we recommend that the Council: 

send P and Mrs B a letter of apology;



pay P £3,000 to compensate for loss of opportunity and frustration caused by postponement of further education. The Council acts as trustee for the money and the arrangement is time limited from the date of the final decision to P’s 20th birthday in February 2018. The money is to be spent on any purpose which furthers P’s academic/vocational education or any suitable leisure activity (driving lessons/gym membership) which improves P’s welfare following a request by P or on his behalf;



pay Mrs B £500 to compensate for distress caused by strain on family relationships associated with her son not participating in education, training or full-time work between September 2014 and July 2015;



review procedures to ensure that all secondary school pupils in Years 9, 10 and 11 with statements of special educational needs or education, health and care plans have Transition Plans in place, that these are reviewed as required, and that appropriate support is provided to pupils in transition planning.

The Council has accepted our recommendations to remedy the complaint. It should confirm it has taken these actions within three months of the date of this report. The Council has also said told us that it will take the following steps to improve practice: 

Review procedure with a view to setting up an assurance system for Year 9, 10 and 11 Annual Reviews including a check that a transition plan has been included in Annual Review paperwork.



Produce a good practice guide for school personnel to explain their role and responsibility in transition planning for young people with education, health and care plans or statements of special educational need.



Ensure that transition plans for young people with particularly complex needs are supported by a Guidance Adviser.

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Introduction 2.

Mrs B complains about the lack of transition planning for her son, P, who has a statement of special educational needs which the Council intends to convert into an Education, Health and Care Plan. Mrs B complains on behalf of P that the Special Educational Needs department failed to ensure that post-16 education for P was properly planned. As a result P was unable to pursue a suitable course of academic/vocational study in the academic year 2014-15. P did not participate in academic/vocational education nor employment associated with training in this period.

Legal and administrative background 3.

The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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))

4.

The government issued a Code of Practice providing statutory guidance on duties and practice called ‘Special Educational Needs Code of Practice - 2001’ (‘SEN Code’) which Councils must have regard for. This was the Code of Practice which applied at the time of the complained about matters. The government also issued additional statutory guidance called ‘SEN Toolkit’ to be read alongside the SEN Code.

5.

When considered necessary a council will arrange education for a pupil with special educational needs under a statement which specifies the nature of the learning difficulty, education objectives, provisions and placement. Councils have an absolute duty to make arrangements for implementation of the contents of the statement.

6.

Statements of special educational needs must be reviewed each year by councils. This process is known as Annual Review. Annual Review involves the head teacher holding a meeting to assess the pupil’s performance and progress in relation to targets, and consider whether the statement of special educational needs should be kept, changed or ended. Based on the meeting the head teacher writes and submits a report to the Council. The Council (Special Educational Needs department) then decides whether to continue, change or end the pupil’s statement of special educational needs.

7.

Annual Reviews from Year 9 to Year 11 are particularly significant because these years involve the pupil choosing options and preparing for courses leading to nationally recognised qualifications, and the pupil is close to starting post-16 academic education, vocational training or work-based training. The purpose of Annual Reviews in Years 9, 10 and 11 is two-fold: 

to review the statement;



to draw up a plan or to review an existing plan for transition from secondary education to the 16-19 further education/training phase. 2

8.

Paragraph 9.51 of the Code says that ‘the annual review in year 9 and any subsequent annual reviews until the young person leaves school must include the drawing up and subsequent review of a Transition Plan’.

9.

Paragraph 9.51 of the Code says that ‘the Transition Plan should draw together information from a range of individuals within and beyond school in order to plan coherently for the young person’s transition to adult life.’ The Transition Plan includes plans for post-16 education, vocational training and career options and could include plans relating to health and social care. Section 10.34 of the SEN Toolkit says that the Transition Plan ‘must be framed in terms that allow for monitoring and continuous review. It should include tangible outcomes, clear and realistic milestones and specific commitments from the young person and from those whose support is necessary to achieve the Plan’.

10.

The Code and SEN Toolkit say that in most circumstances the head teacher is directly responsible for ensuring that a Transition Plan is drawn up and reviewed annually. Paragraph 9.50 of the Code says that the head teacher holding a Year 9 Annual Review meeting ‘must ensure that a Transition Plan is drawn up’ and that this ‘should be done in consultation with the Connexions Service’. Section 10.33 of the SEN Toolkit says ‘at subsequent annual reviews until the young person leaves school, the head teacher should ensure that the Transition Plan is reviewed and updated’. Section 10.5 of the SEN Toolkit says the head teacher may delegate the task of drawing up the Transition Plan to a member of school staff or a Connexions Service Personal Adviser.

11.

Section 10.6 of the SEN Tool Kit says ‘where a young person attends a non-maintained special school or an independent school the Local Education Authority (LEA) is responsible for ensuring that the Transition Plan is produced’.

12.

The Code and SEN Toolkit describes the role of the Connexions Services (professionals who specialise in providing young people with advice and assistance regarding post-16 options and careers education) in transition planning for a pupil with a statement of special educational needs. Paragraph 9.56 of the Code says that a representative of the Connexions Service ‘must be invited to the Year 9 Annual Review’ and ‘must attend’. A Connexions representative ‘should be invited to all subsequent annual reviews, and are expected to attend when appropriate’. Paragraph 9.57 of the Code says that ‘the Connexions Service should assist the young person and their parents to identify the most appropriate post-16 provision, provide counselling and support, and have continuing oversight of, and information on, the young person’s choice of provision. These processes will need to be carried out in partnership with the LEA’s SEN officers and those professionals who know the young person well.’ Paragraph 9.48 of the Code says ‘the LEA must send the Connexions Service a list of all pupils in their area who will require a year 9 review no later than two weeks before the start of the school year’.

13.

Paragraph 9.53 of the Code says that ‘the Connexions Service is responsible for overseeing the delivery of the Transition Plan and the Connexions Personal Adviser should coordinate its delivery’. Paragraph 9.62 of the Code says that ‘the Connexions Service should be invited to and should attend the review meeting in year 11 in order to 3

ensure that the Transition Plan is updated appropriately’. Connexions should fully involve the young person in planning for post-16 provision. Paragraph 3.17 of the Code says that ‘planning for transition necessitates young people being encouraged to have high aspirations, offered accurate information on the options available to them, and invited to say what other options they would like considered’. 14.

Until September 2014 Connexions was responsible for carrying out assessments specifying learning difficulty and provision (section 139A assessments) for young people with statements of special educational needs who will transfer from school to college at the end of Year 11. Section 10.43 of the SEN Toolkit says that ‘where it becomes clear from the review that a young person with a statement is likely to leave school for other post-16 provision the Connexions Service will have a particular responsibility to ensure that an assessment of their learning needs and the provision required to meet them is undertaken during the young person’s last year of compulsory schooling’.

15.

The Prospects/Connexions Service provides the Personal Adviser service in the Milton Keynes area. This service is commissioned by the Council.

16.

The Code says what should happen if the statemented pupil in Year 11 attends a school without a sixth form. Paragraph 8.124 of the Code says that ‘where the young person’s present school does not cater for children aged 16 plus, the LEA should consider whether to amend the statement to name another school or cease the statement if an appropriate Further Education course is identified. The LEA should formally propose to amend the statement to name the alternative school or formally propose to cease the statement.’

17.

The Education and Skills Act 2008 says that from September 2014 every young person must participate in appropriate education or training until 18 with duties on local education authorities to enable and support participation. The Education and Skills Act 2008 says that from September 2014 all young people until the age of 18 are required to participate in education and training through either: 

full-time education in school, college or home education;



work-based learning such as apprenticeships;



part-time education or training combined with employment, self-employment or volunteering for more than 20 hours a week.

The government has issued statutory guidance for local authorities on these duties in a document called ‘Raising of the Participation of young people in education, employment and training – 2013’ (RP). Paragraph 26 of RP says that ‘every young person who reaches the age of 16 or 17 in any given academic year is entitled to an offer of a suitable place, by the end of September, to continue in education or training the following year’.

How we considered this complaint 18.

This report has been produced following initial and further enquiries of the Council, Mrs B’s written statement of complaint and information Mrs B has provided on the 4

telephone. We have also considered Mrs B’s and the Council’s responses to a draft report. Since the complaint is about P we secured P’s permission for Mrs B to manage the complaint on his behalf.

Investigation What happened 19.

P is a student with special educational needs. The Council carried out statutory assessment of P’s special educational needs in 2013 when he was a Year 10 pupil at an independent mainstream school (school S). Mrs B paid the fees for P to attend school S. Following statutory assessment the Council decided to arrange P’s education under a statement of special educational needs. The Council issued a final statement of special educational needs in April 2013.

20.

P’s final statement of special educational needs entitled him to 20 hours Teaching Assistant support which was funded by the Council. The Council did not fund school S’s placement fees because it was satisfied that an efficient education for P, taking into account his special educational needs, could be provided at an alternative school - a mainstream state school - at less cost to the Council. Mrs B continued to fund school fees under a private arrangement with school S.

21.

School S held a Post Statement Planning meeting for P on 22 May 2013.

22.

In February 2014 Mrs B on behalf of P applied for sixth form places at two maintained 1118 schools (schools T and U) in the council area. P expressed an interest in studying 3-4 Advanced-Level qualifications or alternatively a level 3 Business and Technology Education Council (BTEC) course in Business and Information Technology. Mrs B sent schools T and U copies of P’s statement of special educational needs. Schools T and U made conditional offers in line with their standard entry requirements for the courses P applied to study.

23.

School S held an Annual Review meeting on 20 March 2014.

24.

Following Annual Review the Council issued an amended final statement of special educational needs dated 18 April 2014. The Council sent Mrs B a copy of the amended final statement in June 2014 with a cover letter dated 20 June 2014. The amended final statement contained one change to the original statement (correction of a misspelt address). The content of Part 4 of the amended statement was identical to the original statement and referred to a ‘placement mainstream school’, P’s parents having ‘chosen to make other arrangements in exercise of their right of parental choice’ and the Council having ‘no responsibility for meeting the cost of the place’.

25.

In a letter dated 9 July 2014 Mrs B complained to the Council about lack of advice and support from the Special Educational Needs department regarding applications to schools T and U and lack of a plan for P’s transition to 16-19 further education.

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26.

Following Mrs B’s complaint, the Council’s Special Educational Needs (SEN) department sent consultation letters to schools T and U on 16 July 2014.

27.

P left school S in July 2014 on completion of his GCSE courses and final examinations. P received his GCSE results in mid-August 2014. The SEN department sent the results to schools T and U. P’s GCSE results meant that he had not met the requirements for conditional offers at schools T and U.

28.

P’s GCSE results suggested that a Level 2 BTEC might be an appropriate course of study. P expressed an interest in studying for a Level 2 BTEC in Business. Following a telephone discussion with an officer in the SEN department, Mrs B contacted a local college of further education (college W) to enquire about a late application for a Level 2 BTEC Business qualification. However, all places on the Level 2 BTEC Business course starting September 2015 had now been allocated. School sixth forms and other education providers in the area did not offer the qualification.

29.

From the beginning of September 2014 to the end of July 2015 the following has happened. 

Mrs B sent a letter of complaint dated 1 September 2014 to the Director of Children’s Services requesting that the Council tell her how it planned to implement P’s statement of special educational needs in the new academic year. The Council sent Mrs B a letter dated 8 September saying what steps it was taking to identify a suitable placement and course. The letter said that ‘once provision is agreed for P the Local Authority will continue to fund the support to the level identified in P’s statement’.



In September 2014 Schools T and U rejected P’s application for a place to study A-Level qualifications or a Level 3 BTEC course because P did not meet the conditional offers/entry criteria for the courses and provision in the schools’ sixth forms could not meet his special educational needs.



In September 2014 Connexions/Prospects became aware of P’s unsuccessful applications for sixth form places. Connexions/Prospects liaised with Mrs B, the Council’s SEN department, and college W to try to find a suitable placement in further education for P.



Mrs B and P asked the Council to continue searching for a suitable 2 year course which P could start in the academic year 2014-15 and expressed particular interest in courses at college W. The SEN department took responsibility for the search. Despite having spare places college W was unwilling to offer a place on a Level 2 IT course because of concern that P would not be able to catch up with curriculum topics already covered in the autumn term, and also P’s lack of enthusiasm for the qualification. College W was unable to offer P a place on a GCSE re-sit course. The SEN department, Prospects/Connexions officers and college W agreed that P was over-qualified for a Level 1 BTEC course. The SEN department suggested exploring late admission to courses at further education colleges outside the area but P and Mrs B were uninterested because of the travel distance between the colleges and home and the unsuitability of the courses. 6



The SEN department and Connexions/Prospects considered other options for P for the academic year 2014-15 including work-based apprenticeships and short courses to increase learning skills and employability. Connexions/Prospects were unable to find any suitable work-based apprenticeships.



P was in part-time (Saturdays only) paid employment without access to training from September 2014 to the end of January 2015. P was not in education, employment or training from February to the beginning of September 2015.



Due to concerns about strain on family relationships and P’s deteriorating behaviour at home, Children’s Social Care (Children and Families Practice) became involved with the family. With Mrs B’s agreement the Children and Families Practice worker held a Team Around the Family meeting in October 2014 attended by Mrs B, P and a Connexions officer. The Children and Families Practice Worker produced a plan to support the family and prevent further deterioration in family relationships. The Children and Families Practice Worker met with Mrs B and P on several occasions in the first months of 2015 and liaised with the SEN department. The Children and Families Practice Worker closed the case in May.



In March 2015 college W offered P a place from September 2015 on a Level 2 Business course. The SEN department plans to convert P’s statement of special educational needs into an Education, Health and Care Plan. This will specify the support which P will receive in college W from September 2015.

Analysis - lack of a Transition Plan 30.

Section 10.1 of the SEN Toolkit says that ‘Regulations require that a Transition Plan must be prepared for all young people with a statement of special educational needs following the year 9 annual review’. A Transition Plan must be in place from the pupil’s Annual Review in Year 9 to the end of compulsory education in Year 11. Transition Plans are an essential element of provision for a young person with a statement of special educational needs in Years 9, 10 and 11.

31.

Section 10.6 of the SEN Toolkit says that the formal duty for ensuring that a Transition Plan is written lies with the LEA in the case of a young person with a statement of special educational needs attending an independent school. This formal duty exists regardless of whether the child’s place at the school is the result of a private contract between the parent and the school or a contract between the LEA and the school. Apart from this formal duty, the Council’s SEN department has an oversight role in relation to the education of a pupil with a statement of special educational needs and has oversight of all aspects of the Annual Review including the Transition Plan. When receiving Year 9, 10 and 11 Annual Review paperwork from the school’s head teacher, the SEN department should check that a Transition Plan has been written or reviewed.

32.

The SEN department failed to ensure that a Transition Plan was written when the department issued the first finalised statement in April 2013 following its decision to arrange P’s education under a statement of special educational needs. The fact that Transition Plans are normally drawn up when pupils with statements of special educational needs are in Year 9, and P was a Year 10 pupil when the Council decided to 7

arrange his education under a statement, does not lessen the Council’s duty to have ensured that a Transition Plan was written. 33.

The SEN department missed opportunities to identify lack of a Transition Plan for P. The SEN department was not represented at the May 2013 post-statement planning meeting or the March 2014 Annual Review meeting. Attendance of an SEN department representative is not compulsory under the Code but might have alerted the department to the absence of a Transition Plan. The SEN department again overlooked opportunities to identify lack of a Transition Plan when receiving the minutes from school S of the poststatement planning meeting and the Year 11 Annual Review meeting. Analysis - lack of involvement of the Connexions Service

34.

The SEN department should have ensured that a Transition Plan was drawn up in April 2013 and then reviewed in March 2014. This did not happen. If the Council had ensured a Transition Plan was written for P the Prospects/Connexions Service would have become involved in planning post-16 education for P since it is a function of Connexions to coordinate, deliver and review a Transition Plan.

35.

Further when pupils in year 9 or above have statements of special educational needs the LEA must notify Connexions of the existence of the pupil. Paragraph 9.48 of the Code says that the LEA must inform the Connexions Service of all pupils with statements of special educational needs who are about to start Year 9 to help ensure that the Connexions Service fulfils its duties described in the Code. A reasonable inference is that a duty to inform Connexions applies to pupils who are first statemented in Years 10 or 11. The SEN department in the period April 2013 to August 2014 did not inform the Connexions Service that P was a pupil with a statement of special educational needs and thus ensure that the Connexions Service was aware of its responsibility to deliver a Transition Plan and provide guidance and support regarding post-16 education.

36.

The Connexions/Prospects service has a key role to play in planning for post-16 provision for a young person with a statement of special educational needs. Connexions/Prospects became first aware of P in early September 2014 when Mrs B contacted the agency asking for advice about post-16 qualifications for P.

37.

P and Mrs B did not have access to the Connexions/Prospects service before he left school in July 2014. P was unable to make use of a service which in all likelihood would have enabled him in Year 11 to make realistic and successful applications to colleges or schools for post-16 study. With the support of a Transition Plan and the guidance and support of the Connexions Service, it is likely that P would have started studying in September 2014 for a suitable qualification in an appropriate setting with appropriate support in place.

38.

It is likely that if P had been known to the Connexions Service when he was a pupil in Years 10 and 11, a Connexions Personal Adviser would have completed a Learning Difficulty Assessment (LDA) for P to help him secure appropriate special educational needs support in a college setting. An LDA is an assessment of the post-16 educational

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and training needs of a young person with a learning difficulty undertaking study in a college and the resources/equipment to meet those needs. Analysis - lack of SEN department involvement in planning post-16 provision 39.

When P was a Year 11 pupil, the SEN department was not involved in advising or supporting P with applications for sixth form places at schools as it should if the young person intends to progress education in a school sixth form. Based on the evidence of the final statement of special educational needs dated 18 April 2014 the SEN department had the intention of maintaining a statement of special educational needs for P for the academic year 2014-15. However, the SEN department overlooked references in school S’s Annual Review meeting report to Mrs B having made applications for P for sixth form places at two maintained schools (schools T and U) and may have assumed that P was continuing into the sixth form at school S or transferring to another private school. Part 4 of the April 2014 final statement of special educational needs – the section setting out arrangements for placement – referred to the parents as having made ‘other arrangements’ and the Council undertaking ‘no responsibility for meeting the cost of the place’. Based on the evidence of the April 2014 final statement of special educational needs, the SEN department seems to have assumed that it was not responsible for naming a placement in a sixth form school.

40.

There was a lack of coherent decision making on placement by the SEN department when P was a Year 11 pupil at school S.

Conclusions 41.

We conclude that the Council: 

Failed to ensure that a Transition Plan for P was written and reviewed. As a consequence P and Mrs B did not have access to the Connexions/Prospects service which could have provided P with expert advice on suitable post-16 qualifications and education settings. With the help of a Transition Plan and the Connexions Service when P was a school pupil in Years 10 and 11, it is likely that P would have started studying at the beginning of the academic year 2014-15 a suitable course at an appropriate setting with appropriate support in place.



Since September 2015, the Council has put considerable effort and resources into planning P’s education. However, fault by the Council in the period April 2013 to August 2014 resulted in injustice to P. As a result of fault, P has been unable to engage in suitable education and training during the academic year 2014-15. P has had to postpone further education and training.



Though P has been offered a place at college W from September 2015 to study for an appropriate qualification, it was P’s intention to start post-16 further education in September 2014. Fault by the Council in the period April 2013 to July 2014 also had the consequence that P, through no fault of his own, has not ‘participated’ - as the Education and Skills Act 2008 says he is required to do - in 9

appropriate education or training in the past academic year. Further if the Council had acted without fault, it is likely that strain on family relationships in the autumn of 2014 and the subsequent involvement of the Children’s and Families Practice Service with the family would not have occurred. 

Completing applications for sixth form courses at schools and having them rejected caused Mrs B and P avoidable distress and frustration. It is likely that if proper post-16 planning had been in place when P was a pupil at school S, Mrs B on behalf of P would not have applied for courses which were unlikely to result, given P’s predicted GCSE grades and special educational needs, in a successful final offer.

Decision 42.

Fault causing injustice.

Recommendations 43.

To remedy the injustice caused to P and Mrs B we recommend the Council: 

send P and Mrs B a letter of apology;



pay P £3000 to compensate for loss of opportunity and frustration caused by postponement of further education. The Council acts as trustee for the money and the arrangement is time limited from the date of the final decision to P’s 20th birthday in February 2018. The money is to be spent on any purpose which furthers P’s academic/vocational education or any suitable leisure activity (driving lessons/gym membership) which improves P’s welfare following a request by P or on his behalf;



pay Mrs B £500 to compensate for distress caused by strain on family relationships associated with her son not participating in education, training or fulltime work between September 2014 and July 2015;



review procedures to ensure that all secondary school pupils in Years 9, 10 and 11 with statements of special educational needs or education, health and care plans have Transition Plans in place, that these are reviewed as required, and that appropriate support is provided to pupils in transition planning.

44.

The Council has accepted our recommendations to remedy the complaint. It should confirm it has taken these actions within three months of the date of this report.

45.

The Council has also said it will take the following steps to improve practice: 

review procedure with a view to setting up an assurance system for Year 9, 10 and 11 Annual Reviews including a check that a transition plan has been included in Annual Review paperwork; 10

46.



produce a good practice guide for school personnel to explain their role and responsibility in transition planning for young people with education, health and care plans or statements of special educational need;



ensure that transition plans for young people with particularly complex needs are supported by a Guidance Adviser.

We note the Council’s constructive response to this investigation and willingness to take remedial action to prevent similar fault happening again.

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