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Surrey County Council (20 007 260)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 26 Aug 2021

The Ombudsman's final decision:

Summary: Mrs B complained the Council did not secure suitable education provision her son and delayed reviewing his Education, Health and Care plan. Mrs B said her son missed education and EHC provision. We found fault with the Council for failing to secure education and Education, Health and Care provision for C. We also found delays in the Council’s EHC process. The Council will make a financial payment to Mrs B to remedy the injustice caused by these faults and make service improvements.

The complaint

  1. The complainant, who I refer to as Mrs B, complained the Council did not secure suitable education provision for her son and delayed reviewing his Education, Health and Care (EHC) plan.
  2. Mrs B said her son missed education and EHC provision. She said trying to get the Council to fulfil its statutory responsibilities caused her stress and put to time and trouble.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  3. 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)
  4. 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

  1. I considered:
    • Mrs B’s complaint and the information she provided;
    • documents supplied by the Council;
    • relevant legislation and guidelines; and
    • the Council’s policies and procedures.
  2. Mrs B and the Council commented on this draft decision. I considered their comments before making a final decision.

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What I found

Legislation and Guidance

Education

  1. Under Section 19 of the Education Act 1996, councils have a duty to ensure a child has access to:
    • full-time education, or
    • in the case of a child within subsection 3AA, education on such part-time basis as the council consider to be in the child's best interests.
  2. Subsection 3AA: A child is within this subsection if the council considers that, for reasons which relate to the physical or mental health of the child, it would not be in the child's best interests for full-time education to be provided for the child.
  3. For children who cannot attend school because of illness or permanent exclusion the Council provides education through a service called Access to Education (A2E).

Education, Health and Care plans

  1. 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. Councils have a duty to ensure the special educational provision set out in an EHC plan is arranged. (Children and Families Act 2014 section 42)
  2. EHC plans should reviewed by the council at a minimum every 12 months. Within four weeks of the 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, and notify the child’s parent or the young person and the school or other institution attended.
  3. If the plan needs to be amended, the council should start the process of amendment without delay.
  4. Where the council proposes to amend an EHC plan, it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes.
  5. The council must give the parent or young person at least 15 days to comment and make representations on the proposed changes, including asking for a particular school or other institution to be named in the EHC plan.
  6. Following representations from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within eight weeks of the original amendment notice.
  7. We cannot direct changes to the sections about education or name a different school. Only the SEND tribunal can do this.

Impact of the COVID-19 pandemic

  1. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published ‘Good Administrative Practice during the response to Covid-19’.
  2. The Coronavirus Act 2020 allowed the Secretary of State to temporarily change existing legal requirements and issue guidance about provision of education for children with special educational needs and disabilities.

Risk assessments

  1. On 23 March 2020 schools in England closed to most pupils as part of the first national lockdown, apart from children of key workers and those who were vulnerable.
  2. The Government asked councils to carry out risk assessments to decide whether children and young people considered vulnerable, including those with an EHC plan, should stay at home or go into school. It issued guidance ‘Coronavirus (COVID-19): SEND risk assessment guidance’ on 19 April 2020. The risk assessment should have:
    • decided whether the pupil could have their needs met at home and be safer there than attending an educational setting.
    • taken account of the views of the parents or carers and the child or young person.
  3. The guidance notes it may be difficult to provide all elements of support in an EHC plan, for example where the child is not attending their education placement or services are reduced through illness or other COVID-19 related restrictions.
  4. In deciding what provision could and could not be made, councils had to consider:
    • specific local circumstances and workforce capacity;
    • the needs and specific circumstances of the child or young person; and
    • the views of the child, young person, and their parents.
  5. If it was not possible for the council to arrange or secure full provision detailed in an EHC plan, it needed to consider whether anything could be done differently to deliver the provision.
  6. Councils should keep a record of the provision it decided it had to secure or arrange. It should have also:
    • confirmed to the parents or young person what it decided to do and explained why the provision differed from what is set out in the EHC plan; and
    • kept decisions under review, holding early reviews where necessary.
  7. These were temporary changes applying from 1 May to 31 July 2020. At the end of this period, councils’ usual duties returned.

What happened

  1. This chronology includes key events in this case and does not cover everything that happened.
  2. Mrs B has a child, C. C has been diagnosed with autism spectrum disorder. He has an EHC plan. In September 2019, C moved to junior school.
  3. In February 2020, the school told the Council it had excluded C and he was at risk of further exclusions. The school arranged an emergency EHC plan review meeting for 27 March 2020.
  4. Mrs B contacted the Council. She said the school was not providing C with the support in his EHC plan and this was affecting his behaviour. She told the Council this was causing her family anxiety. She explained she had asked the school to remove the exclusion from C’s record.
  5. The Council offered to consult with the school and to observe C in class. The school did not take up these offers.

20 March to 30 April 2020

  1. On 23 March 2020, the country went into a national lockdown. The school postponed C’s EHC plan review.
  2. Mrs B was a key worker and asked for C to continue attending school. However, the school told her to keep C at home. The Council says the school provided C with online work while he was at home.

1 May to 31 July 2020

  1. The school held the postponed EHC review meeting in June. The school said it could not meet C’s needs and he needed a new placement. Mrs B confirmed this. Attendees discussed strategies the school could use to support C. The Council suggested holding an interim EHC review meeting two months after C returned to school in September to assess the situation. The Council said it would write an amended EHC plan after the interim EHC review.
  2. In June, Mrs B told the Council she had not received a risk assessment for C. She queried what the school’s responsibilities were to children with EHC plans. She asked the Council for support educating C and if he could have a tutor.
  3. In July, Mrs B explained to the Council and the school C’s relationship with his teaching assistant had broken down and she wanted a new teaching assistant assigned in September. She also asked how the school was using the 32 hours of support the Council funded.

September 2020 to December 2020

  1. Mrs B contacted the Council in September. She said C’s EHC plan had not been finalised and asked what the next steps were.
  2. A virtual professionals meeting was held to discuss C. The school said it was concerned that C was not accessing the curriculum and was disturbing other students. Attendees discussed strategies the school could use. They agreed the Council’s specialist teachers would provide training to school staff and C’s parents, and educational professionals would observe C at school.
  3. Mrs B told the Council the school was not delivering the provision in C’s EHC plan. The Council decided this was a school matter and directed Mrs B to the school’s complaint procedure.
  4. The manager of the Council’s specialist teachers met with C’s class teacher and teaching assistant to create a positive behaviour plan. The Council was concerned about comments the school made on the plan, noting “It really worries me that basic strategies and provision are not in place for a child with an EHCP and an ASC diagnosis.” The manager of the Council’s specialist teachers also met with Mrs B and her advocate to discuss the plan.
  5. C received a school exclusion. The school proposed he went on a reduced timetable. The Council and educational professionals did not think C needed a reduced timetable. They felt his behaviour could be managed if the school followed the positive behaviour plan. At first Mrs B agreed to a reduced timetable. However, she withdrew her agreement when the school proposed C would only attend until 11.15am each day.
  6. Mrs B asked the Council to consider a change in placement for C because the school was not delivering his EHC plan. She complained the school had breached C’s positive behaviour plan. Mrs B presented as anxious and upset when she spoke to the Council. She was worried C was suffering emotionally and physically and did not feel safe at school.
  7. Mrs B made a formal complaint to the Council in October. She complained:
    • the school was not delivering C’s EHC plan;
    • staff at the school did not have the right knowledge and skills to support C;
    • the school used discriminative language in C’s positive behaviour plan; and
    • C did not have a private safe place to go at school to de-stress.
  8. The Council told Mrs B she could not access its complaints procedure because there was an alternative and more appropriate route. It advised Mrs B to take her complaint through the school’s complaints procedure.
  9. The Council consulted with three mainstream education providers to see if they could meet C’s needs and offer him a place.
  10. The school held a EHC plan review meeting in October. The school said it could not meet C’s needs and recommended he moved to a new placement. Attendees agreed he should move to a mainstream school with a specialist centre for communication and interaction needs (COIN).
  11. C’s doctor signed him off from school because of concerns about his mental health. Mrs B send the Council a copy of the doctor’s letter and asked it to fund home tutoring. She told the Council C would study from home until it found him a new educational placement. Mrs B asked the Council to reassess C’s EHC needs.
  12. In internal emails, staff considered C’s case. Staff considered whether C was suitable for a referral to A2E. In this email discussion, a member of staff commented, “I don’t think he should come off roll and if fresh start is needed they [school] should be providing resource for it out of his funding, then they [school] hold responsibility until he leaves”. The Council’s position was it remained the full responsibility of the school to educate, safeguard and monitor C.
  13. Despite the Council’s initial response to Mrs B’s complaint, in November 2020, the Council responded to her complaint at stage one of its complaint procedure. It said:
    • The day-to-day arrangements for C were the responsibility of the school.
    • The Council had not delivered staff training at the school.
    • The lead specialist teacher worked with the school and Mrs B to form a jointly agreed plan to identify and implement additional strategies.
    • Educational professionals visited the school and spoke to staff to identify any training or support needs.
    • The Council asked the school to identify a safe place for C.
  14. The Council took C’s case to its EHC plan governance board. The board agreed to a change of placement to an alternative mainstream school in line with parental preference.
  15. An advocate contacted the Council on Mrs B’s behalf. She reminded the Council of its duties under Section 19 of the Education Act 1996. She said the work the school was sending C was not effective and Mrs B was having to pay for a tutor for C. The Council told Mrs B’s advocate the school should pay for C’s tutor.
  16. The Council asked the school what it was providing C. The school said it was sending work home but he was not completing all the tasks. The Council told the school it was responsible for providing tutoring to C.
  17. In internal Council emails it noted that Mrs B was not a teacher and she spoke English as an additional language. It suggested that C might not have completed tasks because they were too hard, or Mrs B was finding home educating him difficult.
  18. In these emails, the Council confirmed its position with those involved in C’s case:
    • C will remain on roll at the school.
    • Home learning tutoring will remain the responsibility of the school.
    • The school is fully responsible to educate, safeguard and monitor C.
    • It aims to support the family to a new placement however C will stay on the school roll until the managed move is completed.
  19. In December, the Council sent Mrs B a draft amended EHC plan for C. Mrs B told the Council she wanted it to offer C a place in a special educational needs school. She told the Council she was struggling to get the school to pay for C’s tuition. The Council told the school as it was receiving 32.5 hours of funding to support C it was expected to cover the cost of C’s tuition.
  20. The Council took Mrs B’s request for a special educational needs school to the EHC plan governance board. The board agreed to offer C a place in a school with a specialist centre for COIN.

January to March 2021

  1. In January, the Council consulted with seven education providers with COIN units and two non-maintained independent specialist providers.
  2. The school held a meeting. The Council said as C was on the school roll it expected the school to pay for C’s tuition. The Council confirmed it was looking for a new placement for C.
  3. The school reiterated that it could not deliver C’s EHC plan. It asked the Council how it was meeting C’s occupational therapy and speech and language provision in his EHC plan. The school refused to pay for C’s tuition.
  4. Mrs B brought her complaint to us. We asked the Council whether it had completed its complaint investigation. In February, the Council told us it would not consider Mrs B’s complaint at stage two of its procedure because it had been through the school’s complaint procedure. It said it was working with the school to address Mrs B’s complaint while looking for another placement.
  5. None of the providers the Council consulted could offer C a place. Staff sought permission to approach other non-maintained independent specialist provision. A SEN manager refused to give permission and told staff to revisit COIN units.
  6. The Council consulted another three education providers.
  7. In March, the Council referred C to A2E (Access to Education).
  8. The Council issued C’s final EHCP on 30 March. It named C’s existing school as his education provider in the plan.

Analysis

Education provision

  1. C’s doctor signed C off from school in October 2020. Although, C remained on the school roll and sent work home, he had difficultly accessing this provision. The Council knew the work the school was sending C was not effective in November 2020.
  2. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made. When the Council became aware the arrangements made by the school were not suitable, it became responsible for C’s education provision.
  3. The Council did not make any education provision between November 2020 and March 2021. This was fault. This caused C and Mrs B significant injustice. C missed five months of suitable education. Mrs B paid for tuition for C herself and was put to time and trouble and caused stress and frustration chasing the Council to fulfil its statutory duties.

EHC plan

  1. Between 1 May and 25 September 2020, the Secretary of State removed the specific timescales for EHC plans set out in the SEND regulations, replacing these with the requirement to do ‘as soon as reasonably practicable’ whenever the COVID-19 exceptions applied.
  2. An EHC plan review meeting was rearranged from March to June 2020 because of COVID-19. Although the school said it could not meet C’s needs and he needed a new placement and Mrs B agreed, attendees agreed to revisit C’s EHC plan in the autumn term. There is no evidence the Council formally told Mrs B whether it intended to keep C’s EHC plan as it was, amend the plan, or cease to maintain the plan. It appears Mrs B was under the impression C’s EHC plan was going to be amended following this meeting. Failure to inform Mrs B of its decision was fault. This caused Mrs B uncertainty, and frustrated her right of appeal to the SEND tribunal.
  3. From 26 September 2020, the statutory timescales came back into force. In October 2020, there was an interim EHC plan review. Attendees agreed C’s EHC plan needed to be amended. The Council has not provided me with a copy of a notice to amend. Failing to issue a notice to amend was fault.
  4. The Council issued an amended draft EHC plan in December 2020 and a amended final EHC plan in March 2021. The code requires the Council to act without delay. I consider there was a delay amending C’s EHC plan. This delay was fault and again frustrated Mrs B’s right of appeal to the SEND tribunal.
  5. At the virtual professionals meeting in September 2020 meeting, the Council agreed to provide training to school staff and C’s parents. The Council accepted this had not happened when it responded to Mrs B’s complaint in November 2020. Failing to provide this training was fault. There is uncertainty about whether, if this training had been provided, the school would have been able to manage C’s behaviour more effectively. This uncertainty caused an injustice to C and Mrs B.
  6. In October 2020, Mrs B asked the Council to reassess C’s needs. There is no evidence the Council responded to her request. This was fault and frustrated her right of appeal to the SEND tribunal.

EHC provision

  1. In March 2020, England went into a national lockdown and schools closed to most pupils. Up to 1 May 2020, the Council’s full duty to ensure provision in the C’s EHC plan applied. Between 1 May and 31 July 2020, the Council had to make ‘reasonable endeavours’ to secure it.
  2. The Government asked councils to carry out risk assessments to decide whether children and young people considered vulnerable, including those with EHC plans, should stay at home or go into school. The Council provided me with a copy of the school’s risk assessment. The assessment was that C should be educated at home. The school’s risk assessment did not consider Mrs B’s views and wrongly stated she was not a key worker. The risk assessment did not adhere to the government guidance. Once the Council became aware that the assessment was flawed, it should have raised this with the school and not doing so was fault. In addition, there is no evidence either the school or the Council identified, recorded, and shared with Mrs B which parts of the support in C’s EHC Plan would be delivered while he was being educated remotely, this was fault. These faults meant C’s risks were not assessed properly, Mrs B’s role as a key worker was not considered and Mrs B was not told what EHC provision could and could not be made. These faults created uncertainty about whether C should have continued to attend school and whether other provision should have been delivered between May and July 2020, causing injustice to C and Mrs B.
  3. From the start of the autumn term, the Council’s full duty to ensure the provision in the C’s EHC plan was delivered was re-established. From July 2020, the school repeatedly told the Council it could not meet C’s needs. This was confirmed by Mrs B. Between September 2020, when the Council’s duty to ensure the provision in C’s EHC plan was delivered, and March 2021 the Council failed to do so. C missed out on seven months of EHC provision. Again, Mrs B was put to time and trouble and caused stress and frustration chasing the Council to fulfil its statutory duties.

Complaint procedure

  1. In September and October 2021, Mrs B complained to the Council that the school was not delivering the provision in C’s EHC plan. The Council signposted Mrs B to the school’s complaint procedure. The Council did respond to Mrs B in November 2020. However, it refused to consider her complaint at stage two of its procedure because it had been through the school’s complaint procedure.
  2. The Council is ultimately responsible for ensuring the provision in a child’s EHC plan is delivered. The Council should have carried out its own complaint investigation at both stage one and two of its procedure, as well as signposting Mrs B to the school’s complaint procedure. Failure to complete its complaint procedure potentially delayed the resolution of the complaint.

Conclusion

  1. The Council failed to ensure C had access to full-time education, or education on a part-time basis as the council considers to be in his best interest, and to ensure the special educational provision set out in his EHC plan was delivered. The Council appeared to have fundamentally misunderstood its duties. Once it was clear the school could not, or would not, fulfil its duties, the Council had a duty to act.

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Agreed action

  1. Within one month of the final decision the Councill will:
    • Pay Mrs B £400 because for the time and trouble she was put to, and the stress and uncertainty caused by the Council’s faults.
    • Pay Mrs B £1500 for C’s loss of education provision, minus any money paid to Mrs B to reimburse the cost of C’s tutor, between November 2020 and March 2021.
    • Pay Mrs B £1800, for C’s lost EHC provision between September 2020 and March 2021.
    • If C has remained out of education since March 2021, the council should consider making a further payment for lost education provision and lost EHC provision in line with the remedy in this decision.
  2. Within two months of the final decision the Council will:
    • Provide staff involved in education provision and the EHC process with training about the Council’s statutory responsibilities and statutory timescales.
    • Provide staff involved with education provision and the EHC process guidance about dealing with complaints about these matters.
    • Review the Council’s policy for escalating concerns about education providers.
  3. The Council should provide us with evidence these actions have been completed.

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Final decision

  1. I have completed my investigation and uphold Mrs B’s complaint. Mrs B was caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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