Summary: There was no fault in the way the Council dealt with Y’s education provision during and immediately after the first lock down. There was a delay of about three months in issuing an amended Education, Health and Care Plan for Y following a review of the plan. This was fault, but it did not cause significant injustice requiring a remedy for reasons given later in this statement. The Council will apologise for the delay in informing Mrs X of her appeal rights.

The complaint

1. Mrs X complained about Norfolk County Council (the Council). She said it:
1. Failed to take appropriate action when the school excluded her son Y
2. Failed to ensure Y had the one-to-one support from a teaching assistant (TA) specified in his Education, Health and Care (EHC) plan
3. Failed to ensure Y could return to school in June 2020 when the first lockdown ended
4. Failed to ensure Y started at the school named on his latest EHC plan at the start of term (September 2020.)
2. Mrs X said the Council’s failings meant she had to give up freelance work to educate Y at home and Y’s loss of three months’ schooling set him back socially.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. The Court of Appeal decided the actions of a council dealing with a complaint about school matters is not within our remit. The Court rejected submissions that we had power to investigate the consequences of a decision if investigation of the decision itself was excluded by schedule 5 or Section 26(6) of the Local Government Act 1974 (R (on the application of ER) v CLAE and London Borough of Hillingdon [2014] EWCA Civ 1407)
8. Complaints about Education, Health and Care Plans (EHC plans) may be within our remit depending on the complaint. We can investigate a complaint about an EHC plan if:
• The action relates to an administrative function of the council
• The action is taken by or on behalf of the council
• The action is not excluded by the provisions in paragraphs 5 to 7.
9. 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)
10. 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 a copy of the final decision statement of this complaint with Ofsted.

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How I considered this complaint

11. I considered:
• Mrs X’s complaint to us
• The Council’s response to her complaint
• Documents described later in this statement
12. I discussed the complaint with Mrs X.
13. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

14. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s or young person’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.

15. Councils are responsible for making sure arrangements specified in an EHC plan are put in place. (Children and Families Act 2014, section 42) 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.
16. There must be a review of an EHC plan at least every year. The review considers the appropriateness of the EHC plan and whether any changes are needed, including any changes to the education placement (SEND Code of Practice (SENCOP), paragraph 9.166)
17. Within four weeks of the review meeting, the local authority must decide whether to keep, cease or amend the EHC plan and must notify the parent. If amendments are needed, the local authority must start the amendment process without delay (SENCOP paragraph 9.176)
18. The local authority must send the current EHC plan and a notice setting out proposed amendments and give the parent at least 15 calendar days to comment. It must issue an amended plan as quickly as possible and within 8 weeks of the original amendment notice. (SENCOP, paragraphs 9.184- 9.186)
19. 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”.
20. The Coronavirus Act 2020 temporarily modified the duty in section 42 of the Children and Families Act 2014 to arrange or secure the SEN and health provision in an EHC plan. The change meant the absolute duty on a council to secure or arrange SEN provision was modified from 1 May to 31 July 2020 to a requirement to use ‘reasonable endeavours’ to do so.
21. Supporting vulnerable children and young people during the coronavirus outbreak – actions for educational providers and other partners (in force between March and August 2020) said education providers and councils should identify vulnerable children and young people, (including those not in education, those with EHC plans and those classed as vulnerable at the discretion of the council) and consider how best to support their welfare and education both remotely and on-site. There should be a risk assessment to determine whether attendance is safe or not.

What happened

22. Y, currently in Year 2 in School B, has autistic spectrum disorder (ASD). Y has had an EHC plan since 2019. Y has challenging behaviour when he becomes distressed. He also has difficulty following instructions. Y’s EHC plan gave him full-time one-to-one support from a teaching assistant (TA) in a mainstream primary school.
23. Y had a one-week exclusion from his previous school (School A) in September 2019 when he began in Year 1. Mrs X told me:
• School A did not communicate well about the events that led to the exclusion. He was excluded after kicking a TA and fighting with another child, but the school did not tell her about either incident on the day each one happened. School A said in a letter to her that the TA had an injury as a result of the kicking incident with Y.
• The agreed behaviour plan was for Y to have his shoes removed at the first sign of distress and agitation and she had never received a full account or explanation of how he could have injured an adult by kicking them when staff were supposed to remove his shoes to minimise injuries.
24. Y returned to School A after the exclusion. Mrs X told us his regular TA was mostly absent after the first day, the school provided Y with one-to-one support with different members of staff and she was not clear Y was getting all the one-to-one hours specified in his EHC plan.
25. Y remained in school until March 2020 when the government announced the first national lockdown. Mrs X told me she consented to educating Y at home because one of his siblings has a health condition making them clinically vulnerable to COVID-19. The Council told me School A’s risk assessment concluded it was not safe for Y to be at school and so he received home education packs.
26. When schools reopened in June, Mrs X said she wanted Y to return to School A. Mrs X said in her complaint to the Council that School A’s risk assessment highlighted potential challenging behaviours and that if she had tried to send him back, he would have got excluded immediately and this would have had a negative effect on his self-esteem and anxiety.
27. The Council told me Mrs X chose not to send Y back because she was worried about possible further exclusions. It also told me there was a place available for Y at School A when schools reopened and he received a differentiated work pack every two weeks to complete at home and had support from teaching assistants available.
28. An early annual review of Y’s EHC plan took place in July 2020. Mrs X requested a change of school because she considered School A could not meet Y’s needs and requested School B for Y. The record of the annual review said:
• School A appointed a key person to work with Y one-to-one. Support had not been provided by one person as planned, but he had received one-to-one support by familiar adults throughout the school day. Mrs X completed the risk assessment and opted not to send Y back because she felt School A would be setting him up to fail because of its behaviour policy.
• Despite a high level of support, Y still displayed behaviours in school indicating high anxiety levels and sensory issues and further assessment through educational psychology and specialist support was needed, including a referral to an occupational therapist.
• Y’s parents would let the EHC plan co-ordinator know about whether they wanted a different placement and which schools to consult with.
29. Mrs X requested School B and one other school. The Council consulted with these schools. The Council told me School B did not respond to the consultation until after the summer holidays.
30. Mrs X complained to the Council at the start of September 2020. Y was still having home-schooling, but he remained on School A’s roll. Mrs X complained to the Council about the way School A was implementing its behaviour policy. Mrs X also complained she could not send Y back to school because of a high chance he would be excluded immediately. She said she had asked for a transfer to a different school in July, after the EHC plan review meeting, but had not had a reply. She said she was home-schooling Y until his transfer to the new school was resolved.
31. The EHC plan co-ordinator met with senior staff at School A in October about Mrs X’s concerns with the work packs being sent home for Y. The EHC plan co-ordinator looked at a sample work pack which School A was providing every two weeks. School A’s staff reported Mrs X said she did not feel it was in Y’s best interests to return there due to difficulties he might experience with a further transition to a different school within a short period of returning to School A.
32. Officers from the Council’s Intervention Service liaised with School A by email and phone at the end of October to provide advice and guidance about its behaviour policy. The records indicate:
• School B had given Y a start date of 23 November
• School A kept Y on the roll and was providing work for him to do at home. His absence was authorised
• Officers looked at School A’s safeguarding and behaviour policy (amended in June 2020 with an annex about COVID-19)
• The headteacher of School A agreed communication with Y’s parents about the exclusion was not as effective as it could have been
• The officers’ view was School A balanced inclusion and health and safety. The behaviour policy was fit for purpose
• Y was already withdrawn from school when the new behaviour policy was put in place so there was no evidence he would have not had adjustments made for him.
33. The Council’s response to Mrs X’s complaint said:
• It had passed on her concerns about the school’s behaviour policy not addressing the needs of children with ASD to the Council’s inclusion team for support with changes to policy.
• She needed to complain to School A if she wanted to raise the issue formally.
• It had consulted with the schools of her choice and the headteacher of School B contacted the SEND team to discuss how Y’s needs could be met with the current COVID-19 restrictions. Further discussions and visits by health and safety took place and as a result changes to the school’s environment were suggested and implemented.
• A start date at the beginning of November had been agreed and Y was on the roll at School A meantime and was receiving work to do at home. The EHC plan co-ordinator had spoken to the headteacher at School A and was satisfied the work was suitable.
• The final EHC plan after review would be issued that day with School B named.
34. The Council did not issue a final EHC plan the following day, despite saying it would do so in the complaint response.
35. Mrs X continued to raise existing and new concerns. And she also complained the start date at School B had been put back three weeks. The Council responded to say it was sorry the start date had been put back. It also said:
• The Intervention Service had discussed her concerns with School A and it had reportedly reviewed procedures to improve communication with parents. The Council found no evidence the School A’s decisions were based on an inappropriate policy. The exclusion met the statutory requirements and the behaviour policy accommodated inclusive elements that would have allowed Y to manage and attend within COVID-19 restrictions.
• There was no evidence School A could not have supported Y’s return to school.
• School B delayed responding to the consultation until the start of September, but it was sorting out safe re-opening. School B also delayed Y’s start date as it needed to put in place measures to ensure a safe and smooth transition for Y. If she was unhappy with School B, she needed to complaint to it directly.
36. The Council issued an amended final EHC plan naming School B at the start of February 2021.

Was there fault?

The Council failed to take appropriate action when the school excluded Y

37. We have no power to investigate School A or any of its policies. We can only investigate the Council’s actions. We cannot investigate the exclusion itself, only the action the Council took when it became aware of it. There is no evidence the Council was aware of the exclusion at the time. The exclusion was for one week in the Autumn term of 2019 and Y returned to school afterwards. The Council cannot be criticised for not taking action about something it did not know about and so I found no fault by the Council.

The Council failed to ensure Y had the one-to-one support from a teaching assistant (TA) specified in his Education, Health and Care (EHC) plan

38. It is not in dispute that Y’s regular TA was absent from work or that Y had one-to-one provision from other staff in the school. The Council said it was satisfied this was from a team of staff who were familiar with his needs. Staff illness does happen and is outside the Council’s control. There is not enough evidence to indicate Y did not have the one-to-one support set out in his EHC plan. I do not uphold this complaint: there was no fault with the Council.
39. When schools closed in March 2020, guidance required the Council (and School A) to conduct a risk assessment. This concluded Y was not safe at school. And, Mrs X told me she consented to educate Y at home because another member of the household was clinically vulnerable. I am satisfied the Council’s actions were in line with the ‘reasonable endeavours’ duty set out in paragraph 20, in line with the guidance set out in paragraph 21 and in line with Mrs X’s wishes. There was no fault.

The Council failed to ensure Y could return to school in June 2020 when the first lockdown ended

40. The Council’s position is School A had a place for Y, he could have returned there in June and remained there until transferring to School B in November 2020. Mrs X said Y could not return to School A because of its behaviour policy. While noting Mrs X’s concerns about School A’s behaviour policy, my view is there was no fault by the Council. The evidence indicates Y could return to School A and so there was SEN provision available which would have met the needs in his EHC plan.

The Council failed to ensure Y started at the school named on his latest EHC plan at the start of term (September 2020.)

41. There was fault in the process of reviewing and amending the EHC plan. The SENCOP required the Council to issue an amendment notice within four weeks of the review meeting in July 2020 and to issue a final EHC plan within eight weeks of the amendment notice. This means Y’s amended plan should have been issued at the end of October or start of November 2020 at the latest. The Council did not issue the final amended plan until February 2021, so there was a delay of about three months.
42. I do not consider the delay caused significant injustice to Y. He started School B in the last week of November. Meantime there was a place available at School A, where he could have attended and received education in line with his EHC plan until School B put in place the exceptional measures required due to COVID-19. The delay meant Mrs X was not informed of her appeal rights to the SEND tribunal and this caused her avoidable frustration.

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Agreed action

43. The Council will, within one month of my final decision, apologise for the delay in amending Y’s EHC plan and in particular, for the delay in informing Mrs X of her right of appeal to the SEND tribunal.

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Final decision

44. There was no fault in the way the Council dealt with Y’s education provision during and immediately after the first lock down. However, there was a delay of about three months in issuing an amended Education, Health and Care Plan for Y following a review of the plan. This was fault, but it did not cause Y significant injustice requiring a remedy for reasons set out in paragraph 42 of this statement. The Council will apologise for the delay in informing Mrs X of her appeal rights.
45. I have completed the investigation.

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Parts of the complaint that I did not investigate

46. Mrs X complained the school’s behaviour policy discriminated against Y, did not consider his needs as a child with a disability and guaranteed that he would be excluded. We have no power to investigate complaints about a school’s actions or failings. So I did not investigate this complaint.
47. The Council gave advice and support to School A when Mrs X complained about the behaviour policy. We have no power to investigate the Council’s actions in advising the school because of the Hillingdon case summarised in paragraph 7. The behaviour policy is a school policy and so is not within our remit and the Council’s provision of advice to the school about its policy is inseparable from the complaint about the policy itself.

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Investigator's decision on behalf of the Ombudsman