Summary: There is fault by the Council in relation to this complaint about provision to meet X’s needs as identified in an Education, Health and Social Care Plan since October 2017. The Council will take action to recognise the injustice caused by the identified faults.

The complaint

1. The complainant, whom I shall refer to as Ms F, says the Council has failed to provide her son, X, with full time education suitable to his identified special educational needs since October 2017 when he was permanently excluded from school. Specifically she says the Council:

1. failed to attend two annual reviews and two emergency reviews leading up to his exclusion in 2017 and believes that their attendance at these may have averted the permanent exclusion;
2. wrongly withdrew an offer of a special needs school, Q School, in Autumn 2018;
3. refuses to meet with her now to discuss how to move the situation forward; and
4. the failure to resolve X’s education placed additional pressure on her and resulted in her children being made subject to child protection plans.

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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. A child with special educational needs 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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.

4. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
5. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

6. 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

7. I considered the information Ms F provided with her complaint and discussed the complaint with her. I made written enquiries of the Council and considered all the information before reaching a draft decision on it.
8. I gave the Council and Ms F the opportunity to comment on my draft decision and took account of their responses before reaching a final decision on the complaint.
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

10. Statutory guidance on Special Education Needs provision states that EHCPs must be reviewed at least once every 12 months. The guidance says that the Council’s decision following the review meeting must be notified to the child’s parent or the young person within four weeks of the review meeting. Paragraph 9.173 of the guidance states that where a child is attending school the Council and the school must co-operate to ensure a review meeting takes place and this includes attending the review when requested to do so. It goes on to say that the council can require the school to convene and hold the meeting on the Council’s behalf. The guidance states that reviews should normally be held in the school and are usually most effective when led by the school.
11. The statutory guidance states that where a child is not attending school the council must invite the parent, child, council SEN officer, health representative and social care representative to a review meeting. Within four weeks of the meeting the Council must decide whether it intends keeping the EHCP, amend it or cease it and tell the parents or young person.
12. Paragraph 10.39 of the guidance provides particular guidance on children with special educational needs who are receiving alternative provision. This states “Local authorities must make arrangements where, for any reason, a child of compulsory school age would not otherwise receive suitable education. Suitable education means efficient education suitable to a child or young person’s age, ability and aptitude and to any SEN he or she may have. This education must be full time, unless the local authority determines that, for reasons relating to the physical or mental health of the child, a reduced level of education would be in the child’s best interests.
13. Statutory guidance on provision of Home to School Transport states “Best practice suggests that the maximum each way length of journey for a child of primary school age to be 45 minutes and for secondary school age 75 minutes, but these should be regarded as the maximum. For children with SEN and/or disabilities, journeys may be more complex and a shorter journey time, although desirable, may not always be possible.”
14. The Council’s SEN panel considers how to progress and agrees action on matters including children with special education needs who are out of school.

What happened

15. X is fifteen years old and in year 10 of his education. He has had an EHCP since 2015. His 2015 EHCP identified that he had a combination of behavioural, emotional and social development difficulties as well as difficulties with cognition and learning and language and communication. He was also diagnosed with an attachment disorder, Attention Deficit Hyperactivity Disorder and features of autistic spectrum disorder. The 2015 EHCP was issued when X was still attending primary school. It names a mainstream primary school as current placement and then states “From 1st September 2015; a specialist provision for young people with social, emotional and behavioural difficulties that meets he needs as identified above. Sutton LA is actively seeking placement and will issue a revised final once confirmed”.
16. The EHCP provision detailed includes 25 hours individual support a week and access to group work in order for X to develop supportive relationships with his peers, work to help him identify and manage his feelings in an educational setting and group work to help his self-esteem.
17. X transferred to M secondary school (a mainstream provision) in September 2015. This was not named on a revised final EHCP. X was permanently excluded from M School in October 2017 when the school felt unable to continue to manage his ever more challenging behaviour.
18. The School arranged two emergency reviews regarding X in early and mid-2017 in order to try to address its escalating concerns about his behaviour. The School reported that no-one from the Council’s SEN team attended either of these meetings, nor did they attend an annual review in July 2016. Following assaults on other students and fixed term exclusions M School permanently excluded X in mid-October 2017.
19. The Council refers to an email it says it sent to the head of the school regarding X which states “It is clear that your school has exhausted all relevant school-based measures set to improve his behavioural reactions, and is in agreement with the recommendation that he would now be best educated within in a more therapeutic and specialist learning environment”.
20. In late October 2017 the Council’s SEN panel agreed to approach three alternative school placements for X. The Council’s chronology indicates that it approached two schools at the end of October and four more in the early part of November.
21. Around mid-November Ms F arranged for a home tuition service to start working with X. This was initially paid for by M School. The Council has not provided any information about how many hours this tuition provided at that time. I therefore rely on the information Ms F has provided on this point which is that it was for 10 hours a week.
22. The Council’s records note that X attended M School until February 2018. It is clear however that he was not attending M School after October 2017 and I therefore assume this reference means he remained on the roll at M School until February 2018. The Council says that one of the schools (School Z) it contacted at the end of October offered X a place and he began attending there in February 2019. An internet search on this school suggests it is a special needs school for children with an EHCP and diagnosed with social, emotional and mental health needs (SEMH) and/or autism.
23. It appears that the placement at School Z ended in March 2018 following “an altercation” in the school and reports of X becoming involved with older boys who had the potential to lead him “astray”. Ms X expressed concerns about X’s safety and said she would not continue to send him to school.
24. The Council says it approached another school (School Y) in April 2018 – one that Ms F had previously not been interested in and she refused to visit in April 2018. The Council has provided a document entitled “Annual Review Panel Recommendation” dated April 2018. No other paperwork related to an annual review at this time has been provided but it refers to progressing a placement at Y School. The Council went on to obtain a place for X at this school and named it on the EHCP. This was the same EHCP issued in 2015 with a different school named in section I. Ms F then submitted an appeal to the SEN tribunal unhappy with school named. It appears Y School then withdrew the offer due to Ms F’s unhappiness with the school. Consequently Ms F withdrew her appeal.
25. Another school the Council approached around this time refused to offer a place on the basis that it could not meet X’s needs.
26. Ms F submitted a complaint to the Council in May 2018. In her complaint she confirmed that the Council was providing 12 hours individual tuition to X a week, that she did not want a placement at Y School as it could meet X’s academic needs but that she was happy with a decision to pursue a residential placement (at Q School) and to increase his individual tuition hours. Its response at stage 2 of the Council’s complaints procedure in August 2018 confirms that at that time X was receiving three hours tuition a day. The response states that whilst the Council was happy to increase this to four hours a day the tuition service did not consider X could manage more than three hours a day. At that point it is clear the Council intended pursuing Q School as the Council’s children’s social care and education teams both felt this would be best for X’s needs. It undertook to continue to provide the individual tuition until a school place was identified and X started attending.
27. The Council approached Q School in July 2018. According to the Council, Q School was approached to provide residential education. The Council says that when the school was visited it became clear that the residential provision was not available. The Council says it considered accepting a day placement for X but decided that the daily travel involved was too far (beyond the DfE statutory guidance which recommends a maximum travel time of 75 minutes) and particularly so for a school that had recently been assessed by Ofsted as “requiring improvement”. For this reason it did not offer Ms F a place there for X even though both she and X expressed a strong interest in a place there. It wrote to Ms F to say it would not be pursuing a place at Q school for these reasons in November 2018.
28. The notes of a review which took place in January 2019 confirms X is now attending a gym, doing sports training (at which he is particularly talented) and has gained work experience by cleaning equipment. It seems that two adults were working closely with X: one with his fitness activities and maths and another working with him on English and history. I understand from Ms F that she identified these two teachers via X’s regular sporting activities. Some agreement was discussed around a home schooling arrangement for these adults to teach X and of finding a venue where X could take exams. The Council says it recognises this arrangement met X’s social, emotional and mental health needs and enabled him to access education and so considered it was acceptable in the short term until a school place was confirmed. Ms F agreed to go and visit Y School with a view to possibly attending Y School part-time and accessing other provision (such as the gym) for the rest of the week. Ms F also named three mainstream schools she would consider for X. The outcome of the meeting included arranging an Annual Review meeting within a month after obtaining information and evidence for this and that the Council would consult with the three schools Ms F identified and to approach Y School again.
29. An annual review took place in March 2019 and resulted in X’s EHCP being amended to state placement in a mainstream school. As I understand it this is in line with Ms F’s preferred placement as she does not want the in-borough specialist provision. The Council has consulted with local mainstream schools in line with Mr F’s preferences and intends naming a school on the EHCP as soon as this is decided.

Involvement of Council’s SEN panel

30. The SEN caseworker wrote a report to the SEN panel in September 2017 detailing a number of difficulties at M School including a number of fixed term exclusions, absconding from the school and physical violence towards other pupils in the school. It said that M School stated it could not meet his needs and that X needed a change of school. Ms F was reported as saying she did not want Y School as X’s father had attended there and she did not want X “following the same path”. The Council’s comments show that the panel agreed the caseworker could approach three named schools for a place for X.
31. The SEN worker made a new referral to the SEN panel at the end of October 2017. In this he stated that X was currently “…on a fixed term/permanent exclusion” and that tutoring was currently being investigated and wanted agreement from the panel to consult a school identified by Ms X in addition to the three other schools. The panel agreed to this.
32. The panel considered a further referral in April 2018 following Ms X’s decision to end the placement at School Z. The SEN worker’s referral to the panel notes that Ms F wanted home tuition to be put in place as she considered this had worked well previously. She said she was concerned that placement at School Y or a PRU placement would be likely to place X at risk of becoming involved with peers who would not be a positive influence. Ms X said she ideally wanted a mainstream placement but accepted this could be difficult to identify. The SEN worker asked the panel to agree to funding for home tuition and for advice on which schools to consult. The panel advised application to end the placement at Z School, arrange immediate transfer to Y School and agreed to fund home tuition of 2 to 3 hours a day.
33. In May the SEN worker went back to the panel again in May 2018. Ms X had identified a school she wanted but it was not on the approved list to the Council could not approach it. The panel decision was to ask Ms F to visit Y School and name it on the EHCP.
34. The SEN worker referred the matter to the panel again in June 2018. In it the worker referred to a recommendation by the SEMH panel which had recommended that due to the concern around X’s home circumstances a residential placement funded by education and children’s services should be considered and to increase the tuition service in the meantime. The panel decided that tuition at the tuition service could be increased if Ms F wanted this and if the service had space to do so. Also that the SEN worker should consult with a named mainstream day school which had been identified by a charity service working with the family. This school was approached but did not feel it could meet X’s needs.
35. In July a note of the panel decision states “progress placement at Q School residential”.
36. The SEN submitted a further referral to the SEN panel in late October 2018 asking for agreement to placement at Q School which X was reported to have attended for two trial sessions and enjoyed them and was keen to attend the school. No outcome of the referral to the SEN panel has been provided but the outcome is detailed above and the placement did not go ahead.

Child Protection Plan

37. The Council confirms that X became the subject of a child protection plan in February 2018. He remains on a child protection plan under the category of emotional abuse. The report of the initial child protection case conference indicates that there were a number of concerns including:
• Difficulties in the relationship between Ms F and X;
• X has challenging behaviour and doesn’t stick to boundaries;
• Living between his mother and grandparent for an extended period of time;
• lack of stability for X;
• not in full time education;
• impact of arguments between X and Ms F on younger siblings; and
• anonymous referral of violence between Ms F and X.

Was the Council at fault and did this cause injustice?

38. The Council failed to issue an EHCP naming the school X was attending in September 2015. This meant the wrong school was named on X’s EHCP for over two years. This amounts to fault. A revised EHCP was issued in May 2018 naming a school that Ms F had specifically said she did not want X to attend. She indicated that she intended appealing and it then seems the School/Council withdrew the offer which in turn led Ms F to withdraw her appeal to SEND. The Council did not change the EHCP however so it still currently names a school that X is not attending and where a place is not available for him and which Ms F believes is not available and does not want. This is also fault. I am not convinced that Ms F is aware that she could have continued to the SEN tribunal to challenge the naming of this school on the EHCP as I have not seen any paperwork advising her of her right to do so and, in any event, she believed the school offer was withdrawn so there was no need for her to challenge the school named on the EHCP though it is fact still named on the EHCP. The fault resulted in injustice to Ms X who was effectively denied her right to appeal to the SEN tribunal against the school named on the EHCP.
39. The Council has failed to properly complete the annual review process for X since at least 2016. I have been provided with no paperwork detailing any conclusion by the Council to any annual review meeting arranged by X’s schools. I have seen notes of and references to meetings arranged by the school and of information provided to one of these meetings. However, there is no evidence that the Council considered the recommendations of these meetings or wrote to Ms F with the decision to maintain or change the EHCP having considered what the meetings had concluded. This is fault. This means Ms F was never given an opportunity to challenge these or given a right to appeal to the SEND tribunal and amounts to injustice caused by the identified fault. M School confirms that the Council did not attend the meetings arranged in 2016 or 2017. This in itself does not necessarily amount to fault though, as outlined, its subsequent failure to consider the recommendations of these meetings does.
40. X received 10 hours of individual tuition from November to around February when he began attending M School. In the absence of any evidence suggesting otherwise I accept Ms F’s assertion that she initiated this provision by requesting it in November 2017. I also recognise that the Council did start the process of seeking another school in October following the concerns about the breakdown of the placement at M School slightly before the ending of the placement at M school. Given the difficulty in finding a suitable school placement since November however, I do not consider there are grounds for me to conclude that an appropriate placement would definitely have been identified for him before the breakdown of the placement at M School and, however the tuition was identified, it was in place fairly promptly after the permanent exclusion so X did start to receive some education quite quickly. It is clear however that this tuition could not have included the specialist provision identified on the EHCP which included group work, for example.
41. The Council named Y School on the EHCP in May 2018. Ms F did not want X to go to this school and said she would seek to challenge the naming of the school by appealing to the SEN tribunal. She understands that the Council agreed to remove the school from the EHCP at this point. This does not appear to be the case however as the copy of the current EHCP provided to me by the Council continues to name Y School. In theory therefore Ms F could have appealed to the SEN tribunal over the school named. As she was unaware that it is still named however and, in fact, says she was told it was removed, I do not consider it reasonable to expect her to have done this and I have therefore exercised my discretion to investigate this issue further. I consider the failure to advise Ms F of her right of appeal amounts to fault.
42. The Council has not provided me with details of its contact with Ms F with regard to arranging a meeting to discuss the situation for her son following the decision not to proceed with placement at Q School in November 2018 except the notes of a review meeting in January. It seems that as a result of this meeting it was arranging an annual review and was approaching other schools for a place for X. I assume therefore that contact with Ms F is in place and that action is now being taken to identify and name a school for X.
43. With regard to the Council’s refusal of a place at Q School, the Council said the reason for this was that the residential school was no longer in operation so a day place was offered instead. The Council considered the travel time of 90 minutes each was above the recommended maximum journey time of 75 minutes and as it had also been assessed by Ofsted as “requiring improvement” the Council should not pursue it. Whilst Ms F did not ask the Council for a place at that school she is clear that both she and X wanted the place there and Ms F says they were told he would be taking up a place there from January 2019. Paragraph 9.79 of the statutory guidance states that councils must comply with a request for a particular school and name it on the EHCP unless the school cannot meet the child’s identified needs or to do so would be incompatible with the efficient education of others or the efficient use of resources. The journey time to the school is not a valid reason to refuse to name it and in any case Ms F says it is driveable in around an hour and, in any even X would have been willing to travel slightly longer than the DfE guidelines as he was very keen to attend the school. This option was not discussed with either him or Ms F. I am unclear as to why the school was considered appropriate in terms of educational suitability as a result of the Ofsted grading when seeking it as a residential placement but not as a day placement. Previous to inspection in May 2017 when it was assessed as “requiring improvement” it had been assessed by Ofsted as “Inadequate” in 2015 and subject to special measures monitoring so its inspection status was well known to the Council considerably before the November decision. The effect of pursuing this school from May to November 2018 without considering any others for this period when the Council was already fully aware of its inspection result resulted in a loss of 6 months in seeking a suitable school place for X. This delay was entirely avoidable and so amounts to fault.
44. In relation to the overall situation regarding provision of schooling to X since October 2017 I consider the evidence confirms that:
• Between November 2017 and February 2018 X received some education amounting to 10 hours a week individual tuition;
• Between February and March 2018 he attended a special needs school;
• Between April 2018 and January 2019 X received individual tuition of around 12 hours a week;
• From January 2019 Ms F has made her own arrangements for provision of education to X and is now waiting for the Council to identify a suitable placement again;
• None of the provision specific to meeting his identified individual needs as detailed in his EHCP has been made since October 2017.
45. There are no grounds for me to conclude that the failure of the Council’s SEN team to resolve X’s education placed additional pressure on her and resulted in her children being made subject to child protection plans. The records of the child protection case conference reports note a number of concerns regarding Ms F and her relationship with X that do not directly relate to his education. Whilst I accept that the situation regarding his education provision probably did not help it is clear there were another of other concerns which contributed to the decision to place X on a child protection plan.

Agreed action

46. The Council will apologise for the identified faults.
47. The Council will review its policies and procedures regarding annual reviews to ensure it is meeting its statutory duties in regard to these. It will provide us with evidence of how it will do this within three months of the date of the final decision on this complaint.
48. The Council will ensure that it properly issues decisions following annual reviews and any other decisions related to the naming of schools in EHCPs and correctly tells parents and carers of their right to appeal to the SEND tribunal. The Council will provide us with evidence of how it will do this within three months of the date of the final decision on this complaint.
49. The Council will pay Ms F £6300 to recognise the injustice caused to X by the failure to put in place education which met his special educational needs as detailed in the EHCP, particularly the 25 hours a week one to one support and the access to group work sessions in addition to the usual education provision. I have calculated this on the basis of a rate of £350 per month for 18 months lost provision since October 2017. I have not calculated this at a higher monthly rate as I recognise that some provision in the form of individual tuition has been in place during this time. This amount should be used for the benefit of X and to be spent on making up for his lost educational provision.
50. The Council will make a further payment of £500 each to Ms F and X to recognise the distress caused by unfairly raising both X’s and Ms F’s expectations in relation to the withdrawal of the place at Q School which had been the only school the Council was pursuing for around six months and after X had attended trial days at the school and both he and Ms F were very keen for him to attend there and fully believed he would start attending here full time from January 2019. In addition, the Council will now issue a decision detailing the education provision it has identified for X and so allow Ms X the opportunity to appeal to the Tribunal about this if she wishes to.
51. Ms F has also been caused a significant amount of avoidable time and trouble for pursuing this matter since October 2017and the Council will pay her £250 to recognise this.

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Final decision

52. I have reached a final decision and issued a final statement on this complaint. There is fault by the Council as detailed above. The Council will take the agreed action in order to recognise the injustice this caused.

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Investigator's decision on behalf of the Ombudsman