Summary: Miss X complains about the Council’s failure to provide the special educational provisions set out in her son’s Education, Health, and Care plan. She also complains the Council failed to appropriately deal with the safeguarding concerns she raised. We find fault with some of the Council’s actions. We have made recommendations for the Council to remedy the injustice caused.

The complaint

1. Miss X complains about the Council’s failure to provide the special educational provisions set out in her son’s Education, Health, and Care (EHC) plan and to appropriately deal with the safeguarding concerns she raised, since 2017. Miss X also complains about:
• the Council’s remedy offer following its audit of her son’s case; and
• the Council’s actions following her withdrawing her son from college. She says the Council did not name an alternative placement or provide any alternative provision. As a result, her son received no education for a year.

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What I have investigated

2. I have investigated Miss X’s complaints about the Council’s failure to provide the special educational provisions sets out in her son’s EHC plan, and her complaint the Council failed to appropriately deal with the safeguarding concerns she raised.

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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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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

6. I spoke with Miss X and considered the information she provided.
7. I made enquiries with the Council and considered the information it provided.
8. I sent a draft decision to Miss X and the Council for their comments.
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 found

Legislation and guidance

SEN and Education, Health, and Care plans

10. A child or young person has Special Educational Needs (SEN) if they have a learning difficulty or disability which calls for special educational provision to be made for them. A child with SEN 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 which include:
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and type of the school or other institution to be attended.
11. The Council has a duty to secure the specified special educational provision in an EHC plan for the child or young person. (Children and Families Act 2014, section 42).
12. The Special Educational Needs Code of Practice 2015 provides detailed guidance to councils about how they should manage reviewing and amending EHC plans.
13. Paragraph 9.177 notes that within four weeks of a review meeting, the council must decide whether it proposes to keep the EHC plan as it is, amend the plan, or stop the plan. The council must tell the child’s parents of its decision. If the council decides not to amend the plan, it must tell the parents of their right to appeal that decision.
14. The code sets out that where the council proposes to amend an EHC plan, it must send the parents a copy of the existing plan and an accompanying notice providing details of the proposed amendments. Following any representations from the parent, if the council decides to continue to make amendments, it must issue the final amended EHC plan within eight weeks of the original amendment notice. If the council decides not to make the amendments, it must tell the parents within the same time limit. (paragraphs 9.194 and 9.196)

Alternative provision

15. Councils have a duty to make arrangements for the provision of suitable full-time education at a school or elsewhere for children of compulsory school age who, “by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless arrangements are made for them”. (Education Act 1996, section 19)
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 16(6))
17. There is statutory guidance available about exclusions from academies. It notes for permanent exclusions, the local authority must arrange suitable full-time education for the pupil to begin no later than the sixth school day of the exclusion. (Exclusions from maintained schools, academies and pupil referral units in England, paragraph 46)

Safeguarding

18. Local authorities have overarching responsibility for safeguarding and promoting the welfare of all children and young people in their area, regardless of the types of educational settings they attend. Councils must investigate if there is reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm. They must decide whether they should take any action to safeguard or promote the child's welfare. (Children Act 1989, section 47)

What happened

19. Miss X’s son, A, has an Education, Health, and Care (EHC) plan. A’s plan highlights he has autism spectrum disorder (ASD) and sensory processing difficulties.
20. In January 2017, the Council issued a final EHC plan for A. The plan outlined A needed one to one support from a trusted adult to engage in learning activities. It did not include any specific Speech and Language Therapy (SALT) provision. The plan named School 1 as A’s placement from September 2017.

School 1

21. A started at School 1 in September 2017. School 1 is an academy school and is not directly controlled by the Council.
22. In November 2017, the Council held a review of A’s EHC plan. The records noted Miss X felt A was doing well in the school but felt the school wanted A out. The school told Miss X it needed to ensure it was able to meet A’s needs and that School 1 was the right placement for him. The school noted A had already had three exclusions. The Council noted it was satisfied A was improving and that more time needed to see if the school could meet his needs.
23. In March 2018, the Council held an annual review. The records showed Miss X was pleased with A’s progress in the school, aside from his attendance. There was no record Miss X raised any concerns about the school not providing the special educational provisions in line with A’s EHC plan. There was also no record of any safeguarding concerns raised by Miss X.
24. In June 2018, Miss X contacted the Council to express concerns about how the school had been dealing with A. Miss X told the Council she was concerned the school was not aware of his autism and sensory difficulties. Miss X also told the Council she had raised concerns with the school about A refusing food and self-harming in class.
25. The Council responded to Miss X and told her:
• The school was aware of A’s ASD and special educational needs.
• It had secured funding to provide extra training for teachers about how needs associated with ASD can manifest.
• The school had apologised for not picking up A was refusing food. The school was now checking A during lunch.
• The school had followed the correct procedures following the self-harm incident which resulted in an emergency appointment with Child and Adolescent Mental Health Services (CAMHS).
• The school was supporting A’s sensory difficulties through their speech and language therapist and apologised for not involving an occupational therapist (OT) sooner.
• The Council had advised the school to engage with the NHS OT service to support A’s sensory difficulties.
26. Miss X responded to the Council and told it she was not happy and felt A had not received the support he needed.
27. In July 2018, School 1 asked Miss X to agree for A to be educated in a student support centre at another school until the end of term. This was known as school to school provision. The Council said if Miss X did not agree, it would exclude A from school until the end of the academic year. The school told Miss X it had consulted with the Council.
28. Miss X did not respond to School 1’s request. The records suggest A did not attend the school to school provision.
29. The Council met with Miss X to discuss a way forward with interim provisions to support A while it sought a new placement. The records of this meeting showed School 1 noted it could not meet A’s needs. Miss X raised the following:
• School 1 had not delivered what was in A’s EHC plan properly and consistently.
• A’s EHC plan was out of date.
• She would not accept any interim provision and she would send A back to School 1 in September 2018.
30. In September 2018, the Council told School 1 that as it remained named in A’s EHC plan, its expectation was for A to return to school at the start of the term. School 1 permanently excluded A from 5 September 2018.
31. Near the end of September 2018, the Council consulted with eight mainstream schools. Miss X confirmed in October 2018 her preference was for School 2. The Council decided to move A to School 2.
32. In November 2018, the Council sent a draft EHC plan to Miss X. The draft plan did not name School 2 as A’s placement. The draft plan also referred to outcomes for A to achieve by the end of July 2017. The Council also completed a reintegration plan and timetable to support A starting his placement at School 2.
33. The Council said School 1’s governing body never confirmed the permanent exclusion as the move to School 2 was agreed. The Council explained as the permanent exclusion was not enforced, A remained on roll at School 1 until he started at School 2. The Council said it was the school’s responsibility to provide work for A.

School 2

34. A started at School 2 in December 2018.
35. In February 2019, an Educational Psychologist completed a report for A. The report noted Miss X was happy with the placement at School 2 as she felt it was the right place for him. It also noted Miss X was happy with how A had settled into the school.
36. In June 2019, the Council held an annual review for A. The records showed Miss X was mostly positive about School 2 and felt the transition had gone well. Miss X noted A had no teaching assistant for a few days and that he needed a laptop. Aside from those, Miss X raised no other concerns about A’s special educational provision during the annual review. Actions from the annual review was for the Council to refer A for a SALT assessment and for a laptop to be purchased.
37. In December 2019, Miss X raised concerns to the Council about School 2 and that A was not receiving all his special educational provisions. Miss X also told the Council A had been assaulted on school grounds by an electrician. The Council later accepted during its investigation into Miss X’s complaint that A did not have a teaching assistant for three months, did not have any SALT, and delay with A receiving his laptop.
38. The Council said School 2 had sought advice from the LADO in December 2019. The school provided the LADO with a summary of what happened, and the action taken by the school. The records noted there was no further role for the LADO as the electrician was not in the children’s workforce.
39. In January 2020, the Council asked the school for a review to explore the concerns. The Council also told Miss X to raise the safeguarding matter with the school.
40. In February 2020, the review was cancelled. Miss X asked the Council to go to the Special Educational Needs and Disability (SEND) Tribunal. The Council told Miss X she could appeal to the Tribunal when it issued the final amended EHC plan.
41. The Council’s LADO also followed up with School 2 about the incident that happened in December 2019. The school updated the LADO on new practices put in place and the action taken. The LADO confirmed the school had taken appropriate action and was satisfied with the update.
42. In March 2020, the Council arranged an annual review meeting with School 2.
43. In April 2020, A’s annual review was cancelled due to the COVID-19 pandemic. The Council sent Miss X a copy of an amended EHC plan for her comments. The draft amended plan did not name any educational placement but did include some extra special educational provisions, such as SALT and OT. Miss X was not happy with the amended plan and asked the Council for an annual review.
44. Near the end of April 2020, the Council agreed to hold the annual review virtually. The Council held A’s annual review in June 2020. The Council said consideration was given to an application for a Fresh Start programme from year 10 onwards at a third school, School 3, as it was felt A would struggle to complete his CGSE years at School 2.
45. In July 2020, the Council sent Miss X A’s final amended EHC plan. The plan named School 2 as A’s educational placement.
46. The Council consulted with School 3 near the end of July 2020.

School 3

47. A attended School 3 from September 2020. A’s last day at School 3 was 20 September 2020. Records showed Miss X withdrew A from the school as she felt it was unsafe as A had reported bullying. Miss X raised this with the Council who confirmed an incident had occurred away from the school and that School 3 was investigating.
48. In October 2020, Miss X met with School 3 and the Council. Records showed Miss X raised concerns A was scared and worried about attending college and she felt it was not safe for A to return if the other students involved in the alleged bullying continued to attend. School 3 told Miss X it had not permanently excluded the other students and they were expected to attend school. School 3 agreed to send A work home.
49. The Council sent an email to Miss X confirming its position that School 3 could meet A’s needs and it would not be looking for an alternative placement. The Council said if A did not return to School 3, the Council expected him to return to School 2. Miss X told the Council she was not happy with School 3 and felt School 2 was also unsuitable.
50. In November 2020, the Council held an early annual review. The records showed Miss X raised the following:
• Concerns about A falling behind in his studies.
• She did not want A to return to School 2.
• She wanted the Council to provide a tutor while it considered other provisions.
51. The Council said it would recommend A was taken off roll at School 3, but he would remain on roll at School 2 while it considered other provisions.
52. In December 2020, Miss X contacted the Council to chase the tuition she asked for. The Council said it declined to provide one to one tuition. It also decided to keep A on roll at School 2.
53. In January 2021, School 3 told the Council it was taking A off roll as he had not attended since 20 September. Miss X confirmed she would not send A back to School 2.
54. School 2 offered A remote learning. Miss X told the Council A would struggle to access online and remote learning. The Council said it would hold an early review to consider the suitability of his placement.
55. The Council held A’s annual review near the end of January 2021. The Council did not provide evidence of what was discussed during this review.
56. In February 2021, Miss X asked the Council for a new EHC plan for A. The Council said it would issue one once the educational psychologist assessment was completed.
57. In March 2021, the Council held another review and agreed School 2 could no longer meet A’s needs. The Council agreed to consult with a special school.
58. In April 2021, the Council made a referral to School 4 for interim one to one tuition for A. Miss X did not agree with the referral.
59. In May 2021, the Council issued a final EHC plan. The plan named a type of school, a special school, as A’s educational placement.
60. School 4 agreed to make provision for A in May 2021. The Council arranged for a meeting between School 4 and Miss X to discuss the provision. Miss X subsequently cancelled this meeting.
61. In June 2021, the Council encouraged Miss X to liaise with School 4 so A could access education. Miss X confirmed she would not rearrange the meeting as she had moved out of the borough and would not be returning.

Analysis

School 1

62. Between September 2017 and June 2018, Miss X raised no concerns with the Council, either about safeguarding or special education provisions not being provided. If Miss X had any concerns, we would expect her to have raised these during the March 2018 annual review. Therefore, there is no fault with the Council’s actions during this period.
63. June 2018 is the first time there is evidence Miss X raised concerns about safeguarding and the lack of support for A. With regards to the safeguarding, there is evidence the Council contacted the school and was satisfied with the action taken by the school. Therefore, we do not find fault with the Council as it has taken appropriate steps to inform itself of the situation and to satisfy itself there were no wider safeguarding matters it needed to be involved in with regards to A. This was in line with legislation and statutory guidance.
64. The Council also called an interim review in July 2018. Again, we consider this to be appropriate as the Council was aware of Miss X’s concerns about the support A was receiving. An interim review was the appropriate mechanism for the Council to use to check A was receiving all his support and that his support was suitable for his needs.
65. From July 2018, School 1 felt it could not longer meet A’s needs and that it felt the placement had broken down. There is evidence the Council wanted to move forward with a different placement, but this was rejected by Miss X. Therefore, the Council has done what it could while still considering Miss X’s preference for School 1. We do not consider there was any further the Council should have, or could have, done.
66. Finally, there is evidence the Council took appropriate action to find A a new placement once he was permanently excluded from School 1. It would be reasonable to allow the Council some time to source the placement. Therefore, while it took the Council one month to source a new placement, we do not consider this to be an excessive delay.
67. A was out of school between September and December 2018. There is no evidence School 1 was providing A with work while he was out of school. We acknowledge the Council says it was the school’s responsibility to provide work for him as he remained on the school’s roll.
68. However, the statutory guidance also notes that for permanent exclusions, it is the council that must arrange suitable full-time education. Further, under Section 19 of the Education Act 1996, it is the council’s duty to make arrangements for the provision of suitable full-time education at school or elsewhere for children who by reason of illness, exclusion from school or otherwise who may not for any period receive suitable education unless arrangements are made for them.
69. It is clear the Council was aware School 1 had permanently excluded A. The Council was also aware of the school’s position that it did not consider it could meet A’s needs. Therefore, although the exclusion was technically never formalised by School 1’s governing body, we are satisfied A was permanently excluded from the school in practice.
70. Therefore, the Council should have considered whether it needed to arrange alternative provision for A between September and December 2018 while he waited to start at School 2. There is no evidence the Council considered this. This is fault.
71. We consider the fault has caused uncertainty. This is because we cannot say whether the Council would have arranged alternative provision if it had properly considered it at the time.

School 2

72. Between December 2018 and December 2019, there is no evidence to suggest Miss X raised any concerns about the placement or the special educational provisions. This suggests there were no concerns. Therefore, we do not consider the Council acted with any fault during this period as there is no expectation for it to take any action when it is not aware of any concerns.
73. December 2019 is the first time Miss X makes the Council aware of her concerns with the school. The Council has accepted some fault as it agreed A did not receive all the special educational provisions set out in his plan. Namely, no teaching assistant for three months, no SALT, and a delay in receiving his laptop. This is fault.
74. We consider there was some delay in the Council arranging the annual review. The evidence shows the Council had called for the review in January 2020. However, the annual review was not held until June 2020.
75. However, we are satisfied this delay was likely, on balance, to have been due to the impact of the COVID-19 pandemic. We acknowledge this was an unprecedented event which would have caused widespread disruption within the Council while new ways of working were adopted. Therefore, taking this into consideration, we do not consider the Council was at fault for the delay in arranging the annual review.
76. In relation to the incident with the electrician in December 2019, there is evidence School 2 reported the incident to the LADO. The records showed the LADO’s consideration and decision making in respect of the incident. Therefore, we are satisfied the Council took appropriate action to consider Miss X’s safeguarding concerns. The LADO was entitled to make a professional judgment to decide they were satisfied with School 2’s actions and that there was no further role for the Council. We cannot criticise or find fault with the decision just because Miss X is unhappy with the decision.

School 3

77. The evidence shows the Council considered School 3 to be a suitable placement for A. The evidence also shows Miss X disagreed with this view and chose not to send A to School 3.
78. Therefore, the consequence of A being out of education since 20 September is due to Miss X’s decision not to send him to the school. We are satisfied the school was available for A to attend.
79. The Council told Miss X of its decision to make no changes to A’s EHC plan within four weeks of the November 2020 annual review. However, the Council failed to tell Miss X of her right to appeal this decision. This is fault.
80. We consider the fault identified caused Miss X some distress. This is because she lost the opportunity to appeal the Council’s decision that the educational placement was suitable when it was clear she disagreed.
81. Further, while we cannot say whether School 3 was a suitable placement for A, we consider the time A spent out of education was impacted by the fault identified. Therefore, there is uncertainty about whether A could have been receiving suitable education sooner if the Council had told Miss X of her right to appeal.
82. Finally, we acknowledge the Council agreed School 2 was not a suitable educational placement for A in March 2021. However, we do not consider this automatically meant School 3 was also unsuitable. This is because School 2 and School 3 were different provisions.
83. Therefore, we cannot say A did not receive suitable education as it remains the case School 3 was available to A to access, and it was Miss X’s decision not to send him. If the Council had told Miss X of her right to appeal, this conflict would have been addressed and resolved if Miss X had appealed to the Tribunal.
84. We do not consider there was any fault with the Council’s actions from March 2021. This is because the evidence shows the Council tried to put in place alternative provision in the form of one to one tuition. This was appropriate in the circumstances as the Council had decided at this point School 2 was not a suitable placement for A and so A would not be receiving a suitable education. However, Miss X decided to decline this option.

EHC plan reviews

85. There was delay in the Council issuing its decision to amend A’s EHC plan following the March 2018 annual review. It should have told Miss X of its decision to amend A’s EHC plan by April 2018. The Council did not send an amended EHC plan until November 2018, a delay of seven months. This is fault.
86. The Council should have issued the final amended EHC plan by June 2018. However, the Council never issued a final amended plan to Miss X before the next annual review held in June 2019. This is fault.
87. We also consider there was fault, at this stage, with the November 2018 draft amended EHC plan. This is because the plan referred to outcomes for A to achieve by the end of July 2017. Therefore, the Council did not amend A’s plan properly to reflect his current circumstances.
88. The Council delayed in issuing a decision following the annual review in June 2019. Again, the Council should have told Miss X of its decision of whether it would amend, not amend, or end the plan within four weeks of the meeting. This meant the Council should told Miss X of its intent to amend the plan by July 2019. However, the Council did not send a draft amended EHC plan until April 2020.
89. However, what is significant is the impact this delay then had on the Council issuing A’s final amended EHC plan. This is because the Council should have issued the final amended EHC plan by September 2019. The Council did not issue the final amended plan until July 2020, a delay of 10 months. This is fault.
90. We consider the faults identified caused Miss X distress and the loss of opportunity to appeal the EHC plans. Further, although there is some uncertainty as to what special educational provisions would have been in A’s EHC plans if the Council had finalised them without delay, we are satisfied it is likely on balance A would have received some extra provisions earlier. This is because SALT provision was included in his July 2020 final amended EHC plan.

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Agreed action

91. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following:
• Apologise to Miss X for the injustice caused to her and A by the faults identified.
• Pay Miss X £500 to recognise the distress, uncertainty and loss of opportunity caused to her by the faults identified. This payment is also to recognise the uncertainty caused to A by the faults identified.
• Pay Miss X £200 a month to recognise A’s likely loss of special educational provision caused by the significant delays identified. There were delays for a total of 17 months. Taking into consideration school holidays, we are satisfied the delays likely resulted in a loss of special educational provision for A for 13 months. The total the Council should pay is £2600.
• Remind relevant staff of the importance of issuing EHC plans within the timescales set out in the SEN code of practice.

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Final decision

92. I find some fault with the Council’s actions. The Council has accepted the recommendations. Therefore, I have completed the investigation.

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Parts of the complaint that I did not investigate

93. Miss X complained about the Council’s actions following her withdrawing her child from college. She says the Council did not name an alternative placement or provide any alternative provision. As a result, her child received no education for a year.
94. This element of Miss X complaint is premature as there was no evidence the Council has had the opportunity to consider and respond to the complaint.

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Investigator's decision on behalf of the Ombudsman