Summary: Mr and Mrs X complained the Council failed to provide suitable education for their son and did not adhere to the Special Education Needs (SEN) Code when reviewing their son’s Education and Healthcare (EHC) plan. They also complained there were failings in the consultation with schools and the Council failed to properly respond to their complaint. We found the Council was at fault and recommended a remedy.

The complaint

1. Mr X complains that the Council;
1. Allowed his son, whom I will refer to as Y, to be excluded from school.
2. Failed to provide suitable education as detailed in Y’s education, health and care (EHC) plan during the period he was excluded.
3. Did not adhere to the special educational needs and disabilities (SEN) code of practice when reviewing and updating Y’s EHC plan.
4. Did not properly approach the school Mr X had chosen for Y to attend.
5. Failed to properly respond to his complaint.
2. Mr X says that the failings of the Council have caused him and his family distress. He says that because a place at the chosen school was not secured, he is now limited to one visit a week to see Y who is based at a residential school far away. He also says Y missed out on suitable education when he was excluded from school.

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What I have investigated

3. I investigated parts b) to e) of Mr X’s complaint. The reason why I did not investigate part a) is set out in the last section of this statement.

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The Ombudsman’s role and powers

4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. 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)
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.
7. 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

8. We spoke to Mr X and considered his complaint and the information he provided. We asked the Council for information and considered its response.
9. We took account of the SEN Code of practice and other relevant legislation.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

11. Section 19 of the Education Act 1996 states that councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons. This should be provided if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. We refer to this as Section 19 or alternative education provision.
12. The statutory guidance ‘Alternative Provision’ from January 2013 confirms the Section 19 duty applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school.

Alternative Provision from March 2020 during the COVID-19 lockdown

13. When England entered a national lockdown on 23 March 2020 schools were closed to the vast majority of children. They remained open only to vulnerable children, and children of specified key workers.  Children with EHC Plans were included in the Government’s definition of potentially vulnerable children.
14. Government guidance stated schools and councils should consider the needs of young people and their parents views. They should conduct a risk assessment for each young person. Schools and councils should decide together who was best placed to undertake the risk assessment, noting the duty to ensure education provision remains with the local authority. The aim of the measure was to ensure the child’s safety, rather than to ensure they received their normal educational entitlements. 
15. Section 42 of the Children and Families Act 2014 requires councils to ensure that young people receive the support set out in their EHC plans. As a result of the Coronavirus Act 2020, the government issued a temporary notice about this. It acknowledged that councils may be unable to secure full EHC entitlements for all children but it stated they would not be penalised if they had used ‘reasonable endeavors’ to do so.

SEN Code of Practice 2015

16. 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.
17. Section 42 Children and Families Act states Councils have a duty to secure the specified special educational provision in an EHC plan for the child or young person. The Courts have said this duty to arrange provision is owed personally to the child and 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. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
18. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance. The requirements include:
• Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
• If a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
• Where a council proposes to amend an EHC plan, the law says 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
• Following comments 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 soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
19. The local authority must ensure that discussions about post-16 options take place in good time as part of ECH plan reviews. Any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer. The local authority must ensure these reviews take place. If it is clear that a young person wants to attend a different school (sixth form) or a college, then that school or college must cooperate, so that it can help to shape the EHC plan, help to define the outcomes for that young person and start developing a post-16 study programme tailored to their needs. (SEN Code paragraph 8.24)

What happened

20. In 2018/19 Y was attending a school close to his home which specialised in supporting pupils with Autism, Learning Difficulties and other needs. I have referred to this as School A in this statement.
21. Y has an Education and Health Care (EHC) plan. School A was named in Y’s EHC plan as of 2018/19. Y’s EHC plan specified various additional support sessions with a member of staff. These included literacy and numeracy work, work on communication, emotional and behavioural work, help developing life skill and motor skills. It specified how much time each week the additional support sessions should be.
22. Y’s EHC plan was reviewed in November 2018. An amended draft EHC plan was sent to Mr and Mrs X in June 2019 but the Council stated, because no response was received it did not issue a final EHC making the amendments. Instead, Y’s EHC remained unchanged. The Council had no record of following up Mr and Mrs X’s response. It accepted that it failed to adhere to the SEN Code of Practice by not issuing a final statement.
23. The school provided risk assessments from 2018, 2019 and 2020. These all show that Y was twisting staff’s wrists and hands and that other behaviours were potentially dangerous (e.g. pulling chairs out from under people and slamming doors without awareness of those around him). All the assessments also recorded that Y refused to co-operate on occasions.
24. Y is strong. In mid-September 2019 there were specific issues reported about Y’s behaviour. He had been physically aggressive with staff at school several times and he would not agree to return to school when out on a school trip. I understand the details were included in the school’s behaviour log. On another occasion Y refused to return to school after a fire drill. Y had also shown controlling behaviour towards staff and the school had allowed Y to ‘take over’ a corridor which led to issues when staff and pupils needed to access that area of the school. The school asked Mr and Mrs X to consider if they would be willing to allow restraint in immediate emergencies which Mr and Mrs X took time to consider.
25. A CIN meeting took place on 18 September. The incidents were discussed and the school stated it did not have funding to provide one to one support for Y. One to one support was not specified in Y’s EHCP. On 19 September the Council’s Children’s Services department asked for copies of the behaviour logs for Y. This would have provided details of the issues.
26. In response to this complaint, School A reflected they had not been able to meet Y’s needs from September 2019. It does not appear the school explicitly made that statement at that time. However, it is evident Y’s behaviour was very difficult and hard to manage and it was clear the school was unlikely to be able to meet Y’s needs post-16. Similar behaviours had been evident since 2018 but that the issue had been escalating in late 2019.
27. An Educational Psychologist’s report in November 2019 noted that communication needed to be better between all parties; Mr and Mrs X, the school and a respite placement that Y attended. It noted that the School did not consider Y could remain there post-16. It stated this needed to be discussed at the EHCP review meeting to arrange a planned move, instead of moving Y in a crisis.
28. Y’s EHCP was reviewed again in November 2019. I understand Y’s behaviour was discussed and there was discussion about planning for Y’s post-16 placement. As this was the year that Y would transition to post-16 education, the SEN code required an EHC plan to be finalised by 31 March.
29. The Council told us it became aware the school were struggling to meet his needs in January 2020. However, the evidence suggests it was aware of difficulties much earlier. Its staff had also attended the CIN meeting in September 2019 and EHCP Review in November.
30. The Council told us following the EHCP review meeting on 27 November 2019, issued a draft EHC plan on 16 January 2020 but it did not issue a final version until August 2020. The Council stated there were difficulties finding an appropriate post-16 placement for Y and this was the reason for the delay. It stated the COVID-19 pandemic further complicated the issue.
31. On 13 February 2020 School A staff met with Mr and Mrs X and stated they intended to exclude Y from school. The school stated that Y’s behaviour had become challenging, that he had taken ownership of the corridor and staff were struggling to stop him moving around the school. The school appeared to recognise that the behaviour Y was exhibiting was due to his conditions. Mr and Mrs X and their representative expressed concern that the school were excluding Y because they could not meet his needs. School A stated it had been saying for quite some time that it could not meet Y’s needs and by taking this action, the Council would need to find Y an alternative placement.
32. Y was excluded from 24 February for a fixed period of 15 days. The school stated this was because Y’s behaviour continued to escalate which created safeguarding and safety issues for both Y, other pupils and staff. The exclusion was later extended from 16 March to 3 April. Correspondence from the school stated work had been set for Y to do. School A also stated it was working with the local authority to look for an alternative placement for Y.
33. While Y was excluded from school, the COVID-19 pandemic resulted in a national lockdown that closed most schools.
34. The Council told us that in recognition of the government guidance and the Coronavirus Act 2020, it sent a ‘Section M’ form to schools requesting that the school detailed what modifications were being made to a pupil’s EHC provision. It required them to share this with the Council. The form was intended to document the discussion with parents about what was happening with each pupil in respect of the modified duty to meet EHC needs. The Council did not receive a Section M form from School A in respect of Y.
35. Neither School A or the Council provided evidence it had completed its Section M form to assess Y’s vulnerability during lockdown in 2020. The school stated the Council had instructed it to keep the numbers of pupils attending to an absolute minimum. It told us Y would not have been able to attend without close and intimate contact. So, the school continued to provide work for Y to do at home. It stated this was the case with the majority of pupils attending the school.

Post-16 education placement

36. In paragraph 29 we set out the time it took to issue a revised EHC plan for Y. Because Y was transitioning to post-16 education, the SEN code required a revised EHC plan to be issued by 31 March 2020.
37. The Council only began sending consultations to schools to find a placement for Y on or around 8 April 2020. This was far too late - after the deadline had passed. For the Council to have met the deadline, and allow schools time to respond, it obviously should have made consultations much earlier than it did. The Council told us the emerging COVID-19 crisis complicated its ability to meet this deadline. It also stated that a new database had an impact. However, the national lockdown only began in the third week of March 2020, shortly before the deadline. The Council provide no reasonable explanation for the significant delay in approaching schools.
38. Mr and Mrs X responded to the draft EHCP issued on 16 January 2020, by accepting it on 24 January 2020. They expressed a preference for Y to attend a particular school (I refer to this as School B). The Council maintains that it only consulted School B on 8 May 2020.
39. Mr X noted that an email between council officers on 5 March 2020 suggested a council officer had visited or had contact with School B. The email stated “I can confirm, [School B] is not an option now or next year. The head feels he is unsuitable for the school and the [council] does not disagree.” When Mr X asked about this the Council did not explain the nature of the contact with School B in March 2020. It only reiterated the formal consultation was made in May 2020.
40. When we asked about this, the Council would not elaborate. It told us only that it confirmed a formal consultation was made in May 2020 and a decision could not be made without consultation.
41. School B’s response to the formal consultation was that it could not meet Y’s needs but it is not clear why the Council would not explain its apparent contact with the school in March 2020 or why it did not respond to Mr X’s complaint of a lack of transparency about this.
42. Evidence from the Council’s files in June 2020 indicates, by that time, the situation had reached crisis point and the Council was seeking a joint residential/education and care placement. A residential placement was found for Y and this was named in his EHC plan in August 2020.

Was there fault by the Council

Education during Y’s exclusion and the Covid-19 pandemic

43. Y was absent from school, but on the school roll due to exclusion between 24 February 2020 and 4 April 2020. During that time the school was providing work for Y to do. The decision to exclude Y was the School’s and we have not investigated this decision.
44. There is evidence Y was receiving work at home during his exclusions. Work was provided in hard copy paper form, rather than online. This was because Y would not be able to work online without support. However, Y’s absence from school meant that he did not receive his full EHC provision. Y’s EHC plan set out the additional support he required. I understand that Y attended a local authority care facility to allow the family some respite from 10 March. However, the Council provided no evidence the support required by Y’s EHC plan was met while he was absent from school through exclusions. The lack of provision was fault.
45. The second period of Y’s exclusion from school coincided with the start of the national COVID-19 lockdown. The following week, the Coronavirus Act 2020 became law. The government acknowledged that councils may be unable to secure full EHC entitlements for every child, but the Act required councils to use reasonable endeavours to ensure pupils received their full EHC entitlements where possible. For its part, the Council says it asked schools to complete a form and report back about each child. There is no evidence this was done for Y. This was fault.
46. Given the existing concerns expressed by the school about Y’s behaviour and whether it could continue to meet his needs, it seems unlikely that a completed assessment form would have found Y was able to actually attend school during the pandemic. However, it is not clear that Y’s EHC provision was being met in another way or what consideration was given to this. Mr and Mrs X are left with a degree of uncertainty about how much EHC provision Y may have received if this had been properly considered by the Council.
47. There was also a wider concern that the school had been stating that it was struggling to meet Y needs since at least September 2019. I have set this out below.

EHCP Reviews and updates to T’s EHCP

2018/19

48. When the Council reviewed Y’s EHCP in late 2018, it failed to issue a draft within the required timescales. This was fault. It then failed to issue a final EHCP at all. This was clearly fault. The Council stated this was because comments were not received. However, it did not follow up to check if Mr and Mrs X wanted to make comments. In any event, a final statement should be issued whether or not comments are received. The Council failed to adhere to the SEN Code of Practice by missing the required timescales and by not issuing a final statement.

2019/20

49. On balance, I found there was evidence that suggests the school were struggling to manage Y’s behaviour and meet his needs from September 2019. The school itself stated this was the case in response to our enquiries. This should have prompted an early review of Y’s EHC plan in September 2019.
50. The Council told us it only became aware the school were struggling to meet Y’s needs in January 2020. However, Children’s Services requested a copy of the school’s behaviour logs and attended a CIN meeting in September 2019. The behavioural issues associated with Y’s conditions were discussed then. Support workers were also liaising between school and home, so it seems more likely than not that they were aware of the increasing concern about Y. I also noted the school told Mr and Mrs X when excluding Y that it had raised concerns over and over. It suggested that the decision to exclude Y would force the Council to find an alternative placement for him.
51. The Council has a duty to ensure Y’s needs were being met. The failure to carry out an early EHCP review was fault given the known issues.
52. When the EHCP review meeting was conducted in November 2019, the Council was aware of concerns about Y. However, the Council again failed to act within the timescales required by the SEN Code. It took the Council around 7 weeks to issue a draft EHC plan, when the SEN code requires this to be done in four weeks. It then took a further 31 weeks to issue the final EHC plan, when the SEN code requires this to be within eight weeks. I acknowledge that the Council had allocated Y’s case to a complex case officer from January 2020. However, the impact of the delay in reviewing Y’s EHCP is likely to have exacerbated the issues for both Y and Mrs and Mrs X. This is particularly the case because, during that time Y had been excluded.
53. The Council states that it delegates the organisation and facilitation of EHCP review meetings to schools or other education settings. However, as it has acknowledged, it retains ultimate responsibility for the review and monitoring of EHC plans. The Council acknowledged that it has experienced challenges when meeting timescales of EHCP annual reviews in general. In addition to resolving this complaint, the Council should review why these issues are occurring and create a plan to determine how it will prevent this happening in future.
54. The delays in the EHCP review in 2019/20 meant there was a delay consulting and agreeing on a suitable school for Y. I note that the school Y now attends from September 2020 is some distance from Mr and Mrs Y. This means they see him less often. However, the suitability of the school is not something we can determine. If Mr and Mrs X consider the school is unsuitable this would be a matter they would need to appeal.

Complaint handling

55. Mr X made a formal complaint in September 2020. The Council stated it would consider some elements of the complaint under its corporate complaints policy and come under the statutory children complaints process. This investigation is focussed on the issues raised about Special Educational needs.
56. The Council’s initial complaint response was dated 15 October 2020. However, it was not sent to Mr and Mrs X until they chased for a response and asked to escalate the complaint. I understand it was provided to them on 11 November.
57. After meeting Mr and Mrs X, the Council told them they had raised some valid points which would be taken on board. The Council apologised for the inconvenience to Y and themselves.
58. The complaint was then placed on hold for two weeks while Mr and Mrs X considered information they had received from a Subject Access Request (SAR). Further responses were sent on 27 April 2021 and 12 May 2021 after Mr and Mrs X made additional comments. Mr and Mrs X asked for the escalation of their complaint in May. A final response was sent to them on 2 September 2021.
59. Overall, there was avoidable delay in responding to Mr and Mrs X’s complaints at several points. In addition, the Council did not directly respond to complaints Mr and Mrs X made or questions they asked. To an extent this led to the continuation of correspondence about the issues of concern. Most notably about consultation with schools.

Injustice

60. The delays in the EHC plan process in 2018/9 and failure to issue a final statement meant Y’s EHCP was not up to date and may not have properly reflected his up-to-date needs.
61. The failure to carry out an early EHCP in September 2019 meant a lost opportunity to review things before the situation reached crisis point. It exacerbated existing problems.
62. Y did not receive the EHC provision that he should have, while he was excluded. While COVID stretched every council’s resources, the issues affecting Y started before the lockdown. During lockdown, there was a need to consider how individuals were affected. The failure to properly consider Y’s provision left Mr and Mrs X with a degree of uncertainty about how much EHC provision Y may have received during the COVID-19 lockdown if this had been properly considered.
63. In 2019/20 there was a continuation of the failure to adhere to the timescales for reviewing and updating Y’s EHCP. This again meant Y’s needs were not properly understood and documented. The Council’s response to Mr and Mrs X’s complaint did not acknowledge and respond to points that Mr and Mrs X made. This meant additional time and trouble pursuing the matter.

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Agreed action

64. Within eight weeks of my final decision the Council should:
65. Apologise to Mr and Mrs X and Y for the failings in the EHCP review process, the lack of EHC plan provision while Y was excluded and during COVID, and for the failings in complaint handling. It should also apologise for the failure to carry out an early review of Y’s EHCP given the difficulties in the school meeting Y’s needs from September 2019.
66. To reflect the distress to Mr and Mrs X from the combination of the uncertainty about the lack of provision, the delay, and the failure to act in late 2019 the Council should pay Mr and Mrs X £500.
67. To reflect the time and trouble Mr and Mrs X spent pursuing the complaint, the Council should pay them £250.
68. To reflect the impact on Y of the lack of EHC provision while he was excluded, the uncertainty about whether more EHC provision could have been made for Y during lockdown and the distress caused by the failings in the EHC review process, I recommend the Council pays Y, through Mr and Mrs X, £750.
69. The Council acknowledged that it has experienced challenges when meeting timescales of EHCP annual reviews in general. The Council should also review why these issues are occurring and create a plan to determine how it will prevent this occurring in future. I note the Council agreed to review the way it deals with the EHCP reviews in 2021 in response to another complaint.

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Final decision

70. There was fault by the Council. I have now completed my investigation and closed my file.

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Parts of the complaint that I did not investigate

71. I did not investigate the complaint about Y being excluded from school, and the Council allowing it to happen. The decision to exclude Y is one made by the school, not the Council, and we cannot investigate complaints about what happens in schools.

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Investigator's decision on behalf of the Ombudsman