The Ombudsman's final decision:
Summary: Mr X complained that the Council failed to ensure his son received all the support he should have had under his Education Health and Care Plan, including during the COVID-19 pandemic. We do not find the Council was at fault in the way it dealt with the special education provision, but it did not record or provide enough information to Mr X about what support would be provided. It has apologised to Mr X. This is a sufficient remedy.
- Mr X complained that the Council failed to:
- ensure that the support set out in his son's Education Health and Care Plan was arranged for him from when he started at a new school in February 2020;
- take all reasonable steps to ensure it was provided while the coronavirus legislation applied; and
- carry out a proper risk assessment to see whether his son's needs could be met safely at school or elsewhere.
The Ombudsman’s role and powers
- 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)
- 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)
- The law says we cannot investigate a complaint when someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
How I considered this complaint
- I discussed the complaint with Mr X and considered the information he provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance on support for children with special educational needs. I issued a decision on the complaint after considering comments from both sides on my draft decision. I then re-opened the complaint to carry out further investigation in response to comments from Mr X. I have now made further enquiries and spoken to the Manager of the Special Educational Needs and Disabilities Service over the telephone. I considered Mr X’s comments in response to the first decision and the further information I received from him and the Council. This is the second final decision on the complaint.
- 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.
What I found
Education, Health and Care Plans
- A child with special educational needs and disabilities (SEND) 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. Section F describes the special educational support to be provided. Section I names the education placement. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
- 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)
Impact of the COVID-19 pandemic
- 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”.
- The Coronavirus Act 2020 allowed the Secretary of State to temporarily modify existing legal requirements and issue guidance about provision of education for children with special educational needs and disabilities.
- 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. 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 with advice about how to carry out the assessments, including the following.
- The risk assessment should determine whether the pupil will be able to have their needs met at home, and be safer there than attending an educational setting.
- Local authorities and education settings should decide together who is best placed to undertake the risk assessment.
- The risk assessment should take account of the views of the parents or carers and the child or young person. It will need to balance a number of factors such as the potential health risks to the child of going into school, the risk of not receiving parts of the support in the EHC Plan in the usual way, and the ability of the parents to ensure they can meet the child’s health and care needs at home for a long period.
- Risk assessments should be ‘proportionate’ and will need to be reviewed as circumstances change.
Providing the support in an EHC Plan
- In an open letter to councils and education providers issued on 24 March 2020 the Department for Education advised it would be introducing temporary emergency legislation modifying councils’ duties in relation to EHC Plans. It said the overall aim was to “balance the needs of this vulnerable group to receive the support they needed with managing the demands on councils and health bodies to respond to the pandemic”.
- On 1 May 2020 the Secretary of State issued a notice under the Coronavirus Act to give more flexibility to councils in dealing with EHC Plans and provision. It changed councils’ absolute duty to ‘secure’ the education provision in an EHC Plan to one of using ‘reasonable endeavours’ to do so. This was a temporary change applying from 1 May to 31 July 2020. At the end of this period, councils’ usual duties returned.
- The Government issued guidance, ‘Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)’ on 30 April 2020.
- This said:
“the notice does not absolve local authorities …of their responsibilities under section 42: rather they must use their ‘reasonable endeavours’ to secure or arrange the provision. This means that local authorities and health bodies must consider for each child and young person with an EHC plan what they can reasonably provide in the circumstances during the notice period”.
- 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.
- In deciding what provision can and cannot be made the council has to consider:
- specific local circumstances and workforce capacity
- the needs and specific circumstances of the child or young person
- the views of the child, young person and their parents about what may be appropriate.
- confirm to the parents or young person what it has decided to do and explain why the provision differs from what is set out in the EHC plan
- keep decisions under review, with an early review if necessary if the child or young person’s needs change.
Council’s response to COVID-19
- The Council says when the lockdown and school closures were announced its first priority was to ensure staff could work from home, and to get key messages out to parents and education settings. Initially the focus was on safeguarding vulnerable children.
- When the guidance came out on 19 April, a Sunday, it had to digest this rapidly and respond. By the end of the week it said it had a procedure in place for ensuring the risk assessments were carried out. The Council produced a risk assessment document and checklist for children and young people with EHC Plans. It required every school to submit a return by 4 May 2020. The Council says it reviewed each return and if there was no evidence of a plan being in place for the child to attend, or for reasonable provision to be made, it would contact the education setting. The Council also had a spreadsheet which contained a section for entering details of what provision in a child’s EHC Plan could be delivered, and any adjustments that needed to be made.
- Mr X is a single parent with two children both of whom have special educational needs. His son, Y, now aged 13, has a mild learning disability and difficulties with social skills and managing his emotions, following some traumatic early life events. Y has an EHC Plan.
- In August 2019, following a re-assessment, the Council issued a final EHC Plan, naming a specialist school for children with SEND and complex needs, School 1. Y had already started attending School 1 in July 2019, but Mr X withdrew him shortly afterwards after a number of incidents where he was unhappy about the way the School had dealt with safeguarding issues.
- Mr X asked the Council for a change of placement to School 2, a specialist school for pupils with moderate learning difficulties. Mr X appealed to the SEND Tribunal in September 2019. After some discussion the Council agreed to consider a placement at School 2, although it had doubts about the suitability of the placement. It produced a proposed amended EHC Plan as a ‘working document’ as part of the Tribunal process. The Council agreed that Y could attend an out of school alternative provision placement (‘The Farm’) for two days a week and have some online learning including some personal tuition. He would then start part-time at School 2 in the spring term in 2020 while the School recruited extra staff to ensure there was adequate emotional support for him. At the same time Y would continue his two day a week placement at The Farm. This would allow him to transition back into education as he had been out of school for several months.
Events from February 2020
- Y went on roll at School 2 on 24 February 2020 after a two-week transition period. Y’s EHC Plan still named School 1. The provision in section F included:
- support throughout the school day and in all lessons from a teacher/Teaching Assistant with various approaches to learning
- an individualised evidence-based programme to develop literacy skills for a minimum of three hours a week, and a similar programme for maths
- use of technology
- one-hour fortnightly support to deliver an emotional literacy programme from a trained member of staff
- a key person in school to build trusting relationship with
- an individual behaviour support plan for Y including what to do when he feels overwhelmed, and a safe place he could go to calm himself
- a detailed transition package to reduce anxiety, including a ten-minute daily meditation session
- two hours a week of PE.
- It accepted that the provision specified in Y’s EHC Plan had not been made since he began at School 2. It said it had made it clear that to support Y’s transition to the school, for the first term of his placement, he would attend the School part-time while continuing to attend The Farm for two days a week. Its view was that School 1 met Y’s needs but it agreed to the request to name School 2 on his EHC Plan.
- It said School 2 had confirmed it completed a risk assessment and put provision in place during the COVID-19 period in line with that assessment.
Analysis – was there fault causing injustice?
- This complaint covers the period from February 2020, when Y started at School 2, to October 2020, when the Council issued a new final amended EHC Plan following the re-assessment. Mr X was not happy with the education and support his son received. I cannot investigate the actions of the School. I have considered how the Council dealt with Mr X and School 2.
24 February to 18 March 2020
- Y was placed on the school roll at School 2 on 24 February and attended until 18 March. During this period the Council had the full duty to ensure the special educational provision in the EHC Plan was put in place. It accepts the provision was not made in full, but says this was because it related to “school-based resources and input” and, as part of the transition plan agreed with Mr X, Y was only attending three days a week. Part of the provision was made through The Farm. Mr X says the provision should have been made in full, but pro-rata for the days Y was in school and so it should make no difference that it was a part-time place.
- Councils have the ultimate responsibility for ensuring the educational provision in an EHC Plan is arranged. But it is not the Council’s role to continuously monitor the day-to-day provision within a school. However councils should take steps to ensure that when a new or amended Plan is issued, any external therapies included in the Plan are arranged to deliver the support required and the school has the required provision in place. The Council should review the provision at Annual Reviews or any interim reviews that take place. It should also follow up any concerns a parent raises that their child is not receiving the required support.
- In this case the evidence shows the Council had extensive contact with School 2 before Y started there with a view to ensuring that it had been able to recruit staff to enable Y to have the emotional support he needed. The place at School 2 was always intended as a stepping stone to a longer-term placement, provision was intended to be kept under review, and it was combined with provision at The Farm.
- Then when Mr X raised concerns with the Council on 6 March, less than two weeks after Y had started at the School, that he considered the support was not being delivered as it should be, the Council contacted the School promptly. It put all Mr X’s concerns to the School and ensured that the School would review the provision with Mr X in advance of the Annual Review, as had originally been agreed.
- Also, the EHC Plan was drawn up to be delivered at School 1, a different type of specialist school to School 2. The Council agreed that Y could start at School 2 while Mr X was appealing for that placement. School 2 explained to Mr X that most of the support in section F was already embedded in its education methods. In his correspondence with School 2 Mr X appears to have accepted this, and in his view it was the EHC Plan that needed to change. That was a matter under appeal and so it is outside the Ombudsman’s remit.
- In these circumstances, my view on balance is that the Council was not at fault in failing to put in place the provision in Y’s EHC Plan during this period.
18 March to 30 April and 1 May to 18 May 2020
- Y had only been attending School 2 for just under a month when the first national lockdown occurred. Y stopped attending on 18 March and was out of school until 18 May 2020. After the national school closure on 23 March the Government announced that councils should carry out risk assessments to see whether vulnerable children should be allowed to attend school. But it did not issue guidance about this until 19 April. The Council says it received over 5000 returns from schools for risk assessments for pupils with EHC Plans. So this means it must have had at least that number of pupils needing risk assessments. The Council carried out the risk assessment of Y on 30 April, around a week and a half after receiving the guidance, and shortly after receiving a letter of complaint from Mr X. Given the emergency situation and the volume of work the Council was facing, my view is that the delay in carrying out the risk assessment was not so unreasonable as to amount to fault. I recognise, however that it left Mr X not knowing how Y would receive any education.
- Up to 30 April 2020 the Council’s full duty to ensure the provision in Y’s EHC Plan still applied. However taking into account that:
- the decision to close schools was announced at very short notice,
- councils had to set up new procedures at pace while their services faced unprecedented demand due to the COVID-19 pandemic,
- the provision was intended to be school-based but Y was not in school,
- schools had not yet fully developed their online resources,
- the school was short-staffed because of COVID-19,
- councils were concentrating at this stage on ensuring vulnerable children were safeguarded,
- schools were closed for two weeks from 8 April for the Easter holidays,
- there was no national guidance at this stage about how to make provision for pupils with EHC Plans during lockdown other than to point out the difficulties this might entail,
in my view it would not be reasonable to criticise the Council for failing to check as a matter of course that pupils were receiving the support set out in their EHC Plans during this period. I would expect the Council to look into the matter if a parent informed it that provision was not being made. In this case it was shortly after Mr X made his complaint to the Council that the Head of SEND carried out the risk assessment and then raised his concerns about lack of provision with the School. Given the circumstances outlined I do not consider it a result of fault by the Council that Y did not receive the full provision under his EHC Plan from 23 March to 31 April 2020.
- Looking at the risk assessment, there is evidence that the Council spoke to Mr X and took account of his views as required, even though Mr X says he was not involved. The Council noted the risks a long period out of school would present to Y’s mental health. It had a detailed discussion with School 2 about what support it would provide and explained to the School that Mr X could not support Y’s home learning himself. It learned that the School would be providing a member of staff to support Y’s online learning remotely and was carrying out welfare calls in line with Y’s wishes. It ensured that Y would return to school on 18 May as Mr X wanted. In the meantime Y continued to attend the alternative out of school provision two days a week, which addressed one of the key concerns, his social isolation.
- Based on the evidence I have seen I consider that the Council followed the guidance on risk assessments in terms of deciding whether Y should attend school or remain at home. Regarding the provision made from 1 May 2020, the Council had a duty to make reasonable endeavours to ensure Y received the support under his EHC Plan. The Council says it was satisfied School 2 was doing what it reasonably could to meet Y’s needs. I recognise it was difficult for Y to engage with the online learning, but the Council took steps to ensure School 2 would address this by arranging for a member of staff to support him remotely. School 2 explained to the Council that all the items Mr X had identified as lacking were available to Y through its online learning programme; the issue was whether he would engage with it.
- In his comments on my draft decision Mr X said the risk assessment did not record the request he made for telephone or video contact from the School. I have investigated this issue further. The Head of SEND said she does not recall Mr X specifically asking for video contact, but when she raised with the School the need for more personal contact with Y and it gave its assurance this would be taking place, she had an expectation this would mean virtual online contact. She was aware that the School was developing its online resources at the time So even if the Council did not record Mr X’s views about the need for video contact on the risk assessment, this did not prevent the Council pursuing the matter of additional contact and support with the School. The personal support may not have been in place as quickly as Mr X would have liked. But I do not consider the Council was at fault in failing to use ‘reasonable endeavours’ to arrange the provision, given the action it took. Mr X may feel the School did not follow up on the promises made, but I have no power to investigate the actions of the School itself.
- However my view is that the Council was at fault in failing to record which elements of the support set out in the Plan the School would be providing, and how any of the support would differ from the Plan, and share this information with Mr X, in line with the guidance. Mr X repeatedly asked for this information and the Council did not provide it. In response to our enquiries the Council sent a blank pro forma schedule with headings for this information, but it is not completed with any details relating to provision for Y. This lack of information caused Mr X some frustration and meant he did not know in any detail what support his son would receive. However it did not affect his ability to ask School 2 to provide further support including video contact as evidenced by his extensive communications with the School.
18 May to 31 July 2020
- For this period Y was in school and the Council’s ‘reasonable endeavours’ duties continued. School 2 provided Mr X with a copy of its plan to support Y when he returned to school which I have not seen. However the documents Mr X has provided from School 2 show Y was receiving much of the specific provision in his EHC Plan in a small group with a high ratio of adult support. Also much of it was embedded in the School’s general approach to teaching. I have not seen evidence that the Council was at fault during this period.
September to October 2020
- The Council’s full duty to ensure the provision in the EHC Plan was arranged resumed in September 2020. Mr X says Y has been well supported at school with a tailored package of education, but this was not reflected in his EHC Plan. That was a matter for the Tribunal and so is outside the Ombudsman’s remit. I have not seen evidence of fault by the Council in failing to deliver the provision in the Plan during this period.
- The Council agreed that within one month of the final decision on this complaint it would write to Mr X to apologise for not providing clear information to him about which parts of his son’s EHC Plan could be delivered and how, following the risk assessment. It has now done this. I have not made any recommendations for improvements in procedures as the period when the risk assessments applied is now over.
- I recognise that the disruption to Y’s education and support during the COVID-19 pandemic has been difficult and stressful for Mr X and his son. But I do not consider the Council was at fault in the way it dealt with the provision in Y’s EHC Plan. It failed to provide adequate information to Mr X about the support that would be provided. The Council’s apology is an appropriate remedy. I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman