Summary: Mr X complained on behalf of P who is autistic and has severe learning difficulties. Mr X complained that P was excluded from school in May 2018 and since that date, the Council has failed to provide P with the special educational needs provision set out in their Education, Health and Care Plan (EHC Plan). The Council was at fault. It failed to provide educational provision for P or meet their special educational needs from May 2018 to present. It further failed to issue an up to date EHC Plan. The Council should pay P £4,800 to acknowledge the loss of that provision and issue an up to date EHC Plan without further delay.

The complaint

1. Mr X complained on behalf of P who is autistic and has severe learning difficulties. Mr X complained the Council has failed to provide P with the educational provision set out in their Education, Health and Care Plan (EHC Plan) since the school excluded them in May 2018. Mr X said the Council has also delayed issuing a new revised EHC Plan.
2. Mr X said the Council’s failing has caused P a loss of educational opportunity and loss of social contact with their peers.

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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. 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)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)

6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

7. I spoke to Mr X who is P’s advocate about the complaint.
8. I considered the Council’s response to my enquiry letter.
9. I considered the content of P’s EHC Plan from November 2017.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered the comments before I made a final decision.

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What I found

Education, Health and Care Plan (EHC Plan)

11. Children with complex needs may require an Education, Health and Care Plan EHC Plan), which details the support they must receive in school.
12. An EHC Plan is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
13. Councils are responsible for making sure all the arrangements named in the EHC Plan are put in place.
14. Councils have a legal duty to ensure the special educational provision in section F of an EHC Plan is delivered from the date they issue a final EHC Plan. This duty is non-delegable.
15. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the EHC Plan. The local health care provider will have the duty to deliver the health care provision.
16. The Ombudsman cannot investigate the Council’s decision whether to conduct an assessment, and the content of the EHC Plan. These are appealable to the Special Educational Needs and Disability Tribunal (SEND). SEND is a tribunal that considers special educational needs.
17. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.

Annual Reviews

18. Councils must review EHC Plans at least every 12 months.
19. Councils must decide whether to maintain the EHC Plan in its current form, amend it, or cease to maintain it within four weeks of the review meeting. The Council should issue the final EHC Plan or decide not to amend the EHC Plan at all as soon as practicable and within eight weeks of the date it sent the plan to the parents/young person with the proposed amendments.
20. Decisions to amend or cease a plan can be appealed to the Tribunal.

Exclusion from school

21. Under the School Exclusions Code, schools may exclude children for a fixed period of up to a maximum of 45 days, or permanently. The school is responsible for the child’s education for the first five school days. But where a child remains excluded from education, a council with education duties must offer alternative educational provision from the sixth day of exclusion. The council’s duty to the excluded child is the same whether the school acts in accordance with the School Exclusions Code, or whether it contravenes it by excluding a child informally. The council’s offer must of be full time education unless it assesses the child as unable to cope with this.
22. Where a pupil with an EHC Plan is at risk of exclusion, schools should consider what additional support or alternative placement may be required and consider requesting an early annual review or emergency review.
23. If the pupil is permanently excluded, the school's governing body must consider whether that decision should be upheld or overturned. If the decision is upheld, a parent has a right to request that an independent panel review the decision.

What happened

24. P is 17 years old and has autism and severe learning difficulties. They have an EHC Plan which the Council issued in November 2017. Section F in the EHC Plan included specific provisions for P which included developing their social interaction, participating in various activities including swimming and assembly, and taking part in messy sensory activities. The EHC Plan said class staff would observe and ensure the provision was met. P attended a school (the School) which is named in the EHC Plan. P is a looked after child and lives at a home (the Home) which looks after adults with learning disabilities but has regular contact with their family.
25. In May 2018, the School decided to exclude P. This was due to the level of behaviour they were demonstrating. The school informed the Council and said it had given P a fixed term exclusion and said it was unlikely it could continue to meet their needs. The school requested an emergency review of P’s EHC Plan which was held in June 2018.
26. Following the review in June 2018 the Council proposed to meet P’s living and learning needs at the Home. The records show the School agreed to send work to the Home for P to continue with their ongoing work towards a formal accreditation. The review identified new outcomes for P’s EHC Plan which included the Home to facilitate a program of education.
27. The Council issued P with a revised draft EHC Plan in August 2018 which included the revisions discussed at the emergency review. The draft EHC Plan acknowledged P would lose out on social contact with their peers, but said support staff would seek community based social groups for them to participate in. The Council said it would continue to look for an alternative education provision for P.
28. The records show the Council’s EHC Plan coordinator arranged a meeting in September 2018 to discuss P’s options. They suggested a specialist provision placement which provided home education for children with complex needs. The specialist provider told the Council it would carry out some introductory visits with P so they could start accessing the provision as soon as possible. The Home contacted the Council in November 2018 and said it had heard nothing further from the specialist provider.
29. In December 2018, the specialist provider told the Council it could not meet P’s needs as it did not have the available staff and its sessions were full.
30. Mr X is P’s advocate and he complained to the Council in December 2018. He complained P had been out of education since May 2018 and the Council had failed to provide them with an education placement appropriate to their needs and as stated in their EHC Plan. He said the only education P had received was from staff at the Home who were working with P to complete a formal accreditation. Mr X said the Council should take immediate steps to identify and secure P an appropriate placement to mix socially with other young people and enable completion of their accreditation.
31. The Council responded to Mr X in January 2019. The Council accepted P was unable to return to the School and was looking for an alternative provision. The Council acknowledged that work provided by the School to the Home did not meet P’s needs long term. It said it did not allow P to mix socially with other young people or take part in activities in line with their EHC Plan. The Council upheld the complaint regarding the delay in arranging suitable provision for P and said it would continue to work on ensuring the provisions within their EHC Plan were delivered.
32. Mr X was unhappy with the Council’s response and wrote to it again in January 2019. Mr X said P was still on roll at the School which he said amounted to unlawful exclusion. Mr X said as P remained on the School roll, it prevented any right of appeal against the decision to exclude them. Mr X said the Council had carried out a limited search for an alternative provision for P and had relied on keeping them on roll at the School. Mr X said the Council had not met P’s educational needs since May 2018. Mr X asked for an urgent update with regards to P’s EHC Plan review.
33. The records show that the specialist provider agreed to provide P with a consultancy service from February 2019. That would involve staff from the provider meeting with staff from the Home each month to review P’s progress. The provider said it would provide suggestions of places to take P which had an educational focus. The provider started that service; however, in March 2019, the Home staff asked for no further input from the provider as they felt the strategies it suggested were not suitable for P’s needs.
34. The Council formally responded to Mr X’s complaint at stage 2 in May 2019. It apologised for its delay in responding. The Council said P remained on roll at the School because it had continued to provide work for P to complete at the Home. The Council said staff at the Home supported P’s learning. It said education was in place for P and was overseen by the School. The Council said it had considered several alternative placements, and would continue searching for a provision which would meet P’s needs. The Council said an EHC Plan review was arranged for June 2019. It said going forward it would work on transition arrangements to support P into adulthood.
35. Records show an EHC Plan review took place in June 2019. The review decided P would remain on roll at the School over the coming year to complete the second level of their formal accreditation with the support of the staff at the Home.
36. In July 2019 the Council held a multi-disciplinary meeting to discuss P’s transition into adulthood. The meeting discussed the possibility of P moving to a new build provision which is in the early stages. The Council said it was not considering any other provisions because there were either no spaces or they were unable to meet P’s needs.
37. Mr X remained unhappy with the Council’s response and complained to the Ombudsman.

My findings

38. The Council said the School put P on a fixed term exclusion from May 2018. The Code allows a school to exclude pupils for a fixed term period up to 45 days or permanently. The Council should have advised the School to comply with the Code. The Council condoned an informal permanent exclusion as in reality, P was not allowed to return to the School while it searched for an alternative provision. That was fault.
39. Following P’s exclusion, the School provided some work for P to carry out at the Home, which allowed them to work towards, and achieve, a formal accreditation. However, as the Council has already acknowledged in its complaint response to Mr X, this short-term solution did not meet P’s long-term needs which was to develop by taking part in the activities laid out in their EHC Plan. Because P was educated at the Home, he lost out on opportunities to develop socially. As a result, the Council failed to meet the education provision as laid out in P’s EHC Plan That was fault.
40. The records show the Council had difficulty finding a new placement to meet P’s needs; however, that does not mean the Council could delay finding a suitable provision. P is still without an alternative provision, 16 months after the School excluded them. This is fault.
41. Following P’s exclusion from the School, the Council held an emergency review into P’s EHC Plan. The review identified new outcomes for P and the Council sent P a revised EHC Plan in August 2018. However, the Council made no further progress on the EHC Plan and failed to issue a final EHC Plan. That is significant delay and is fault.
42. The Council’s complaints procedure says it aims to respond at stage 2 within 25 working days. Mr X wrote to the Council at stage 2 in January 2019, however the Council did not respond until May 2019. That was fault, and the delay caused Mr X frustration and caused further uncertainty for P. The Council had already apologised to Mr X for the delays in its final response which is a satisfactory remedy.

Injustice to P

43. The Council allowed P’s case to drift which meant P lost out on the provision within his EHC Plan for a full school year and that has continued into the current school year. That currently equates to four full school terms. The Council has failed to meet P’s SEN needs during that period. Although the School provided P with some education since May 2018, it was not enough to meet the provision laid out in the EHC Plan. Furthermore, the Council’s failure to ensure P was provided with the social provision in his EHC Plan meant that P lost out on opportunities to develop socially. P is already disadvantaged because of their learning difficulties and has now been further disadvantaged because of the Council’s faults.
44. P’s EHC Plan is outdated and by delaying in issuing a revised plan the Council denied P the right to the new learning outcomes detailed in the draft plan and also the right to challenge the matters by appealing to the SEND tribunal.
45. Had it not been for the Council’s faults, P could have received the provision in line with their EHC Plan and could have received an alternative School placement. That could have reduced the overall impact on P’s educational opportunity and left them in a stronger position than they are now.
46. In deciding the recommended action below, I have consulted the Ombudsman’s guidance on remedies and have taken into consideration the education the Council did ensure P received Any agreed payments are outside of any provision allocated for P’s EHC Plan.

Agreed action

47. To remedy the injustice caused by fault, the Council agreed, within one month of the final decision to;
• pay P £4,800 to use for their benefit. This reflects the loss of education and SEN provision in line with their EHC Plan between May 2018 and September 2019, and for failing to issue an up to date EHC Plan. This amount should be spent in agreement with P’s personal advisor.
• issue an up to date EHC Plan for P or provide the Ombudsman with an action plan to ensure it avoids further delay with the matter.
• remind all relevant staff that informal school exclusions are unlawful. The Council will also remind schools that carry them out that they are unlawful and remind them of the relevant guidance on school exclusions.
48. Within three months of the final decision carry out an audit of 10% of all children with EHC Plans ensuring there has been an up to date review, or whether there are any significant delays in issuing a revised final plan. The dip sample must include a number of children with EHC Plans where the Council has a duty under Section 19 of the Education Act 1996.

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Final decision

49. I have completed my investigation. I found fault leading to injustice and the Council agreed to my recommendations.

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Investigator's decision on behalf of the Ombudsman