Summary: Miss X complains about the Council’s actions in relation to her son’s special educational needs. She complains the Council failed to secure the provisions set out in his education, health, and care plan between 2018 and 2020. She also complains the Council failed to safeguard her son when she raised concerns about his school. We find fault with the Council for failing to secure all of Miss X’s son’s special educational provisions. We do not find fault with the Council’s actions in relation to safeguarding.

The complaint

1. Miss X complains about the Council’s actions in relation to her son’s special educational needs. She complains the Council failed to:
• Secure the provision set out in her son’s education, health and care (EHC) plan between 2018 and 2020. She says the Council fails to understand their special educational needs duties.
• Safeguard her son when she raised concerns about his school between 2018 and 2020.
• Make welfare checks with her son during the Covid-19 pandemic.
• Issue a draft EHC plan following a review meeting in March 2021.

Miss X says the Council’s actions have caused her and her son significant distress. She also says the Council’s actions meant her son has not received any education since 2018.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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. I spoke with Miss X and considered the information she provided.
6. I made enquiries with the Council and considered the information it provided
7. I sent a draft decision to Miss X and the Council and considered their comments.
8. 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 EHC plans

9. 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.
10. A child with SEN may have an 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) The Courts have said this duty to arrange provision is non-delegable. This means if a Council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible.
12. The Special Educational Needs Code of Practice 2015 provides detailed guidance to councils about how they should manage the process of:
• the content of the plan; and
• how to implement, monitor or cease a plan.
13. The code 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 cease to maintain the plan. The Council must tell the child’s parents or the young.

Safeguarding children

14. 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)
15. All schools, including independent schools, are required to have arrangements to safeguard and promote the welfare of pupils attending the school. This includes referring to the local authority if a child is likely to suffer from significant harm and having procedures to deal with peer on peer abuse. Where a local authority has a concern about an independent school’s safeguarding arrangements, it should report this to the Department for Education.

Covid-19 pandemic

16. During the Covid-19 pandemic, the absolute duty of councils to secure or arrange provision set out in section F of an EHCP was temporarily modified to a duty to use ‘reasonable endeavours’ to do so. The changes were applicable from 1 May to 31 July 2020.
17. The reasonable endeavours duty afforded councils a very broad interpretation about what ‘reasonable’ looks like. Guidance sets out the framework which should be used to make these decisions:
• What? – securing something different to what is detailed in the plan
• Where? – different location to one usually arranged
• How? – frequency and timing of provision may be altered due to staff availability or risk of harm
• When? – Method of delivery may be changed e.g. virtual rather than face to face
• By Whom? – changes to person delivering provision e.g. learning assistant with support

What happened

Background

18. Miss X has a child, A, who has an Education, Health and Care (EHC) plan.
19. In March 2018, Miss X asked the Council to consider a placement at an independent school, School Y, for A. Charity Z, owned and ran School Y.
20. In May 2018, School Y offered A a place at the school.
21. Before A started at School Y, a safeguarding incident happened at the school involving an agency worker. The school reported the incident to the Council’s local authority designated officer (LADO), the police and to the disclosure and barring service. The school also notified the worker’s agency, and the worker was removed from the school immediately.
22. In May 2018, Ofsted inspected School Y and noted the school’s arrangements for safeguarding to be effective.
23. In June 2018, A started at School Y.

Safeguarding

24. In November 2018, the Council completed a review of School Y, which included completing a safeguarding check. The review noted the school’s safeguarding processes were effective.
25. In April 2019, the Council met with the school to discuss the high number of reported safeguarding incidents. The school told the Council about the work it had completed to improve safeguarding at the school. The school also asked the Council to support them with reviewing their safeguarding procedures.
26. Following the meeting with the school, a Council officer raised concerns about the general air of defensiveness from School Y and that they felt the school considered the concerns were only due to difficult parents.
27. In May 2019, A was involved in two incidents at School Y. Miss X made the Council aware of these incidents. For the incident where A injured himself, the school accepted it did not have robust safety measures in place regarding the playground equipment, which was damaged when A used it.
28. In June 2019, the Council completed a review visit at School Y to discuss the progress made since April 2019. The records showed the Council considered the school had made developments and good progress since April 2019. However, the Council noted the school needed to take further action in some areas. The Council made some further recommendations to the school.
29. In August 2019, the Council decided it needed to complete a review of all the safeguarding concerns to identify whether there were any wider safeguarding issues. The Council recognised it needed to be satisfied it had considered all the concerns and had responded appropriately.
30. In September 2019, Miss X raised two safeguarding incidents involving A with the Council.
31. In September 2019, the Council told the school it was not commissioning any further placements at the school until it was satisfied the school had improved and completed the recommendations made.
32. In October 2019, the Council offered all parents of students at School Y a change of placement. Miss X said she declined the offer to change placement as A wanted to stay at the school.
33. The Council completed its safeguarding investigation into the specific safeguarding incidents involving A at the end of October 2019. The Council noted it was satisfied with the school’s actions following the incidents. However, the Council made some recommendations to the school, including:
• To provide the accident reports to Miss X.
• To continue with regular checks on the playground equipment and for staff to log any concerns.
• To ensure all accidents were reported in a timely and appropriate manner.
• For the school to improve its investigation process to ensure there were clear timescales and that senior staff were kept informed.
34. Ofsted completed an unannounced inspection in October 2019. The Ofsted report noted concerns the school did not effectively deal with student safeguarding.
35. In November 2019, Miss X had reported another safeguarding incident involving A. The Council completed its own safeguarding investigation into the incident. The Council’s investigation highlighted some concerns about the school’s actions, including:
• The school had not yet completed its investigation despite the incident happening some weeks previously.
• Senior staff were not fully briefed on the investigation.
• Decisions around the arrangements for staff absence cover did not take full account of the information the school had in terms of behaviours and risk assessments.
• The initial reflection of school leaders was the risk of aggression was the student who injured A was minimal when his risk assessment did not support this view.

The Council provided feedback to the school.

36. The Council completed its safeguarding review in November 2019. The Council’s report noted:
• Concerns about practices at the school about how it dealt with complaints and safeguarding concerns.
• A lack of rigour in risk assessments and planning.
• Poor communication with parents on individual safeguarding incidents.
• Insufficient evidence of learning from incidents.

The Council made sixteen recommendations to the school.

37. Also in November 2019, the Council discussed the problems at School Y with Charity Z’s director of education.
38. In November 2019, the Council received further new complaints about School Y from Ofsted and the LADO. The Council met with the school and noted the theme of the complaints was around supervision of children in school and use of learning mentors.
39. The Council again offered Miss X a change of placement in December 2019. Miss X was agreeable to a change of place and told the Council she wanted it to consider a mainstream school with a package of support.
40. In December 2019, the Council received three more safeguarding concerns about School Y. Records showed the Council remained concerned about the quantity of incidents reported and the air of defensiveness from the school.
41. In January 2020, Miss X removed A from the school due to another incident A was involved in. Records showed the Council noted concern about the lack of significant progress by the School Y and had no confidence the school was safe.
42. In January 2020, the Council sent the director of education at Charity Z a letter. The letter outlined the Council’s significant concerns about the lack of progress since October 2019 to ensure safeguarding was effective. The Council also highlighted its lack of confidence in the leadership of the school to respond to further concerns. The Council asked Charity Z to show significant improvements in safeguarding when the Council revisits the school for a follow up review.
43. In February 2020, the Council visited the school to review its progress. The Council’s report highlighted it remained concerned as there was not enough evidence of progress against the recommendations made in October 2019.
44. In March 2020, the Council contacted Ofsted to share its concerns with them. Ofsted also inspected the school in March 2020 and found the school was inadequate. The report noted the school’s arrangements for safeguarding were not effective and that students were not confident staff would deal with concerns raised.
45. In April 2020, School Y announced it would close after July 2020.

EHC plan and special education provision

46. A had a final EHC plan issued in July 2018. A’s plan set out he needed the following special educational provisions:
• One whole class language skill session of 90 minutes per week.
• One whole class of social skills session of 90 minutes per week.
• Extra intervention by speech and language therapy.
• Direct occupational therapy input into his classroom as needed.
• Individual sensory integration therapy.
• Touch typing programme.
47. In July 2018, the Council said it contacted the school to confirm it would commission the therapies A needed.
48. Following a review in November 2018, the Council noted most of the teaching was good. The Council identified some areas for development for the school around improving the quality of its teaching and ensuring better communication with parents.
49. Miss X said she raised concerns about the school not providing the provisions set out in A’s EHC plan in November 2018. Miss X also sent an email to the Council in December 2018, raising concerns that A’s EHC plan was not being followed. Miss X specifically highlighted A was not receiving his:
• Booster lessons.
• Weekly speech and language therapy.
• Weekly language skills.
• Weekly social sessions.
• Touch typing sessions.
50. The review also identified some areas for development for the school and Charity Z
51. In January 2019, Miss X again raised concerns with the Council about A’s special educational provisions not being provided by School Y.
52. In February 2019, the Council held an internal meeting to discuss School Y. The Council noted the school was not performing as expected for some students and that it was not doing everything it could to improve. The Council agreed further discussion was needed about how to hold Charity Z to account and that it needed to closely watch the school.
53. In March 2019, the Council completed an annual review of A’s EHC plan. The record notes the view the placement was still suitable for A. There was no record of A or Miss X’s view on how the placement was going.
54. In April 2019, an educational psychologist issued a report on A. The report noted School Y was not providing some of the provisions set out in A’s EHC plan.
55. The Council met with Charity Z in April 2019. The records showed the Council raised concerns about School Y not delivering all the provisions set out in EHC plans. The Council noted it needed to review the EHC plans to ensure all provisions are being delivered.
56. There is no evidence the Council followed up with School Y on this issue to satisfy itself the school was delivering all provisions set out in EHC plans.
57. In November 2019, the Council asked School Y to confirm it had assigned learning mentors to all children who the Council was paying for to have one.
58. The Council issued a draft amended EHC plan for A in January 2020. The special educational provisions A needed mostly remained the same.
59. The Council also told School Y in January 2020 it wanted to discuss the inconsistency of support where the Council was paying for one to ones, but the support not being in place. There is no evidence the Council followed this up.
60. In March 2020, the Council said it did not hold an annual review because of the Covid-19 pandemic.
61. A mainstream school offered A a place in May 2020.

Covid-19 period

62. In April 2020, the Council asked School Y to review all Covid-19 risk assessments. School Y completed its Covid-19 risk assessment for A. There is no evidence Miss X was consulted. The risk assessment noted it was difficult to support A in school because he always needed one to one support and social distancing could not be effectively maintained. The assessment also noted the school would make regular welfare calls to help and focus A to learn.
63. In June 2020, the Council spoke with Miss X about A’s circumstances during the Covid-19 pandemic. The records showed the Council noted that none of the provisions in A’s EHC plan could be delivered in the same way while he was learning from home. Miss X also told the Council School Y had sent some work home at first and called to check A’s wellbeing. However, no other support was offered or provided by School Y.
64. The Council held a meeting with School Y to discuss the provision within EHC plans and how the school was meeting it for places commissioned by the Council. Following the meeting, the Council noted the provision of work by the school was inconsistent and the school recognised it could have done more, and acted sooner, in respect of online work and remote therapies.
65. Following the meeting, the Council completed a reasonable endeavours plan for A. The reasonable endeavours plan noted:
• A would mainly be supported at home.
• A’s new placement would also provide extra home learning opportunities.
• A focus on temporary outcomes to ensure A had a successful transition to his new placement.
66. The Council completed weekly phone calls with Miss X between June and September 2020.

March 2021 annual review

67. The Council held an annual review for A in March 2021.
68. In July 2021, the Council wrote to the Council highlighting it did not intend to make any changes to A’s EHC plan. This was because there were no significant changes to A’s needs and the provisions named within his plan.

Analysis

Safeguarding

69. The Council has duties to safeguard and promote the welfare of the children it commissioned placements for at School Y. Part of its duty is to act to ensure all children have the best outcomes.
70. There is clear evidence the Council was initially satisfied with School’s safeguarding effectiveness. By April 2019, the Council had concerns about School Y’s safeguarding effectiveness because of the number of incidents being reported to it.
71. The records highlight the Council was aware of its responsibility to be satisfied with the school’s safeguarding effectiveness given it had commissioned placements at the school. The Council took appropriate action to address the concerns as it regularly reviewed and inspected the school. The Council also made recommendations to the school on how it could improve its safeguarding effectiveness.
72. There is evidence the Council held the school accountable as it regularly checked what progress the school had made against the agreed improvement plan and recommendations. We consider it was reasonable for the Council to have given the school some time to improve and to complete the agreed actions and recommendations.
73. There is also no evidence of delays in the Council following up with the school and in reviewing the progress made. The Council did not allow the issues to drift. Therefore, we are satisfied the Council took every opportunity available to hold School Y accountable.
74. It is also worth highlighting School Y was an independent school, run by Charity Z. Therefore, the Council was limited in the action it could take to complete the changes it recommended. This was because the Council was not in control of the school and therefore could not intervene directly.
75. The Council decided to stop commissioning places at School Y in September 2019, five months after the point it was clear the Council had concerns about safeguarding at the school (April 2019). As above, we consider it was reasonable for the Council to give the school some time to complete the needed changes to improve. We do not consider five months to be an excessive period to allow the school to improve.
76. Once the Council was satisfied the school had not made the necessary improvements within a reasonable timeframe, it stopped commissioning places at the school. The Council also offered Miss X the opportunity to change placement. This was appropriate in the circumstances as it shows the Council recognised the placement was potentially no longer suitable for A and gave Miss X the opportunity to choose a new placement.
77. The Council also raised its concerns with the senior leadership within Charity Z and with Ofsted in March 2020. Again, this shows the Council took every opportunity available to it hold the school accountable.
78. The Council also completed its own safeguarding investigations into the incidents involving A. The Council told the LADO of the safeguarding incidents and acted in line with its policies and procedures.
79. Therefore, we are satisfied the Council has acted in line with its duties and took every opportunity to support the school to improve and to actively hold the school accountable. There is nothing further the Council should have done.

EHC plan and special educational provisions

80. The Council has a duty to secure the special educational provisions set out in section F of a EHC plan. Where these provisions are provided in a school, councils must satisfy themselves the school has suitable arrangements to deliver the required provisions.
81. The Council asked the school to confirm how the therapies A needed would be commissioned in July 2018. Given A started at School Y in June 2018, the Council should have satisfied itself all A’s required therapies had been commissioned and was in place for him before then. This is fault.
82. Further, there is no evidence School Y confirmed to the Council it had commissioned the required therapies. There is no evidence the Council followed this up with the school. This is fault.
83. It is clear Miss X had consistently raised concerns with the Council about the school’s failure to deliver all the provisions set out in A’s EHC plan, including speech and language therapy.
84. The Council completed an annual review in March 2019. Because Miss X had raised concerns about the lack of provision in December 2018 and January 2019, it is likely she would also have raised her concerns at the annual review. However, the records do not reflect any consultation with Miss X at all. The records also do not note any concerns around the lack of provisions.
85. Therefore, it is likely on balance, the Council did not use the annual review process effectively and missed the opportunity to interrogate whether the school had put in place the provisions and whether they were working to meet A’s outcomes. This is fault.
86. Throughout the period A attended School Y, there is no evidence the Council took proactive steps to satisfy itself the provisions outlined in A’s EHC plan was secured, despite the concerns raised by Miss X. Therefore, we are satisfied the Council failed to meet its duty to secure A’s special educational provisions for the period A attended School Y. This is fault.
87. It is therefore likely, on balance, A did not receive all the special educational provisions set out in his EHC plan. The educational psychologist report supports this finding as it confirmed A was not receiving all the provisions set out in his EHC plan. This is fault.
88. I consider the faults identified caused A an injustice. This is because he did not receive all the provisions he was assessed as needing and this would likely have had a significant impact on his progress and educational development. The faults also caused Miss X time and trouble as she has had to continuously chase the Council for a resolution. The fault also caused her distress at knowing A was not receiving the provisions he needed.

Covid-19 period

89. During the Covid-19 pandemic, the absolute duty of councils to secure provision set out in Section F of an EHC plan was temporarily modified to a duty to use ‘reasonable endeavours’ to do so. This duty gave councils a very broad interpretation about what ‘reasonable’ looks like. The changes were applicable from 1 May to 31 July 2020.
90. The Council has shown it completed a reasonable endeavours plan for A. There is also evidence the Council properly consulted Miss X on her views on A’s circumstances. Therefore, the Council acted in line with the guidance at the time with regards to making reasonable endeavours to secure A’s special educational provision.
91. Miss X said School Y did not complete welfare checks with her son while he was accessing educational at home. There is no evidence the school completed welfare checks with the A. As School Y was an independent school, we have no jurisdiction to comment or find fault with the school for not completing the welfare checks.
92. However, there is evidence the Council completed weekly welfare checks with Miss X. The records showed Miss X had the opportunity to raise concerns with the Council about the school and A’s transition to his new placement. Therefore, the Council did act to check A’s welfare during the Covid-19 pandemic.

March 2021 annual review

93. Miss X complained the Council did not issue a draft EHC plan following the annual review meeting in March 2021.
94. The evidence showed the Council wrote to Miss X in July 2021, setting out it did not intend to make any changes to A’s EHC plan. Therefore, it would not have issued any draft EHC plan because it did not intend to make any changes to A’s plan.
95. The SEN code of practice 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 end the plan. The Council must tell the child’s parents or the young person of its decision.
96. The Council did not tell Miss X of its decision to keep A’s EHC plan as it was within the required timescales. It should have written to Miss X with its decision by April 2021. It did not do so until July 2021. This is a delay of three months. This is fault.
97. However, we do not consider the fault caused any injustice. This is because while the fault delayed Miss X’s right to appeal A’s EHC plan, there is no evidence she wanted to appeal the plan or had tried to appeal the plan.

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Agreed action

98. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following:
• Apologise to A for the injustice caused by its failure to secure his special educational provisions during the time he attended School Y.
• Apologise to Miss X for the distress and time and trouble caused by the faults identified.
• Pay Miss X £300 in recognition of the distress and time and trouble caused by the faults identified.
• Pay Miss X £200 per month for the period A attended School Y. This does not include the period when he was receiving his education at home during the Covid-19 pandemic and school holidays. This was just under 18 months. The Council should pay Miss X a total of £3600.
• Remind relevant staff of the Council’s duty to secure a child’s special educational provision as set out in their EHC plan. In practice, when provisions are being delivered by a school, the Council must check and satisfy itself the school has either arranged the provision, or it is delivering the provision. It is open to the Council to decide how to do this. However, we will require evidence of this being done.
99. The Council will complete the above within four weeks of the final decision.

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Final decision

100. We find fault with the Council for failing to secure all of A’s special educational provision during the time he attended School Y. We do not find fault with the Council’s actions with regards to safeguarding or its actions during the Covid-19 pandemic. The Council has accepted our recommendations. Therefore, we have completed our investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman