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.

The complaint

1. Mr X complained that the Council failed to:
1. 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;
2. take all reasonable steps to ensure it was provided while the coronavirus legislation applied; and
3. carry out a proper risk assessment to see whether his son's needs could be met safely at school or elsewhere.
2. As a result he says his son has missed out on support he should have had.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
5. 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)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)

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How I considered this complaint

8. 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.
9. 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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What I found

Education, Health and Care Plans

10. 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.
11. 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

12. 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”.
13. 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.

Risk assessments

14. 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.
15. The guidance gave examples of situations where the child was likely to benefit more from remaining in school. This includes where it is not sustainable for parents or carers to meet their child’s needs full-time for long periods. It also includes children and young people whose condition prevents or inhibits self-regulation and whose behaviours cannot be supported or managed by parents or carers at home.
16. When the Government issued this guidance local authorities still had a duty to ensure the provision in an EHC Plan was in place. But the guidance noted it may be difficult to do so, for example where the school was shut or could not open safely, or where parents have chosen to keep the child at home and have agreed temporarily that the child would not be getting access to the education at the school.

Providing the support in an EHC Plan

17. 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”.
18. 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.
19. 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.
20. 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”.

21. 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.
22. 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.
23. If it is not possible to arrange or secure full provision detailed in an EHC plan, factors to be considered include the availability of those who should deliver what is needed and whether anything can be done differently to deliver provision.
24. The guidance provides examples of the types of alternative arrangements that may be made including moving to a part-time timetable, change in placement to another school; reduced class sizes; specialist teachers providing advice and support to parents; widening the use of personal budgets or direct payments to enable purchase of equipment to support home learning.
25. The council should keep a record of the provision it decides it must secure or arrange. It should then:
• 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

26. 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.
27. 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.

What happened

Background

28. 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.
29. 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.
30. 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

31. 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.
32. In February Mr X was in correspondence with School 2 about how it proposed to provide the support in the EHC Plan as he felt that some of it may not be appropriate for the type of specialist school School 2 was. The School confirmed the arrangements it would make, saying much of the support in the EHC Plan was part and parcel of its approach as a specialist school. For example it provided social and emotional support to all pupils. Also each pupil had individual targeted help in English and maths of at least three hours a week, as required in Y’s EHC Plan. It proposed a meeting to review the situation in mid-May before the Annual Review meeting due in June. Mr X agreed that the EHC Plan needed to change so as to “align the specified provision with the more embedded provision within [School 2]”. In correspondence with School 1 he said he did not have concerns about the quality of provision at the School or how well it was supporting Y.
33. On 6 March Mr X wrote to the Council saying a number of aspects of the support set out in the EHC Plan were not yet in place, mainly relating to Y’s Social Emotional and Mental Health (SEMH) needs and his behaviour. The Council wrote to the School four days later setting out all the provision Mr X said was lacking. It asked the School to arrange a meeting with Mr X to discuss his concerns and the arrangements for meeting Y’s needs. It asked the School to keep the Council informed of plans for the meeting and the outcomes resulting from it. It said it had also advised Mr X if he still had concerns after these informal discussions his next step would be to ask for an early annual review.
34. Around the same time Mr X was writing to School 2 with concerns about lack of a transition plan for Y to settle into the School and his need for help with his SEMH needs. The School agreed to have a meeting with Mr X and also confirmed the School psychologist would be able to start working with Y.
35. School 2 closed on 18 March because of the COVID-19 pandemic. Mr X wrote to the School to ask what plans there were for Y to be able attend as a vulnerable pupil with an EHC Plan. The School replied that it did not have enough staff to open and was waiting for guidance. It said it would update parents when it had more news. Y continued to attend The Farm two days a week.
36. In late April Mr X wrote two letters to the Council. In the first he complained that Y was not receiving the support in his EHC Plan as School 2 was only offering childcare. In the second letter he referred to the national guidance on risk assessments and asked for one to be carried out for Y.
37. On 30 April the Council’s Head of SEND Services completed a risk assessment document after a telephone conversation with Mr X. School 2 completed its own risk assessment form and sent it to the Council. The Council form said it had been completed with the parent, and his views had been considered. It noted that Y has a condition that prevents or inhibits self-regulation and has behaviours that can be safely supported or managed by parents or carers at home. However this would not be sustainable full-time for a long period. It said the main concern was Y’s mental health because of continuing social isolation and growing social anxiety, resulting in a significant decline in his learning confidence. It said having school-work delivered to the home the previous week had raised Y’s anxiety. It noted Mr X was “unable to support home learning and overcome anxiety”.
38. In the section about the EHC Plan, the risk assessment noted Mr X’s view that provision in the Plan was not being delivered either at school or temporarily in any other way. Mr X is reported as saying that the School was providing the same online and written material offered to all other pupils. He identified the gaps he was most concerned about, including social skills, literacy and numeracy programmes, physical exercise and use of technology. Mr X also says when he spoke to the Head of SEND he told her he would like the school to offer video contact with Y but this did not happen. There is no record of this request on the risk assessment form.
39. The outcome of the assessment was for the Head of SEND to follow up with School 2 what provision was being made and discuss any reasonable adjustments. The overall conclusion of the risk assessment was that Y would be safer at home and could have his needs met there for a while. But this would need to be monitored and would be reviewed on 6 May because of the potential impact on Y’s long-term physical and mental health. Mr X says he agreed to keep Y at home until 18 May.
40. The Head of SEND contacted School 2 on 6 May to discuss the risk assessment and the support the School could provide to Y. Her email referred to the gaps in provision Mr X had identified, but did not specifically mention video contact.
41. The School replied, explaining the online system it had put in place, which covered the specific items Mr X had raised, but said it had to see if Y would engage with the programmes. It said it had shared many ideas with families and signposted Mr X to them, as well as sending work packs home. Teachers were setting and sending work to children tailored to their needs and interests. It said one of Y’s trusted adults in school had spoken to Y about having regular welfare calls but he only wanted this once a week. The School also explained that its psychologist had not been able to start work with Y as planned because of COVID-19, but suggested his social worker might be able to help him access therapy.
42. Later the same day the Head of SEND told School 2 Mr X was reporting he could not support any home learning. She asked whether there was any possibility of Y having access to online resources from within school or whether he could have more regular contact at home to direct his learning. She said she was concerned Y would become increasingly disaffected from learning. The School replied the following day saying Y was due to access online resources that day, supported by a member of staff remotely “to help support his SEMH barriers to accessing the online system”. The School said it was confident Y would engage and once he did he would get further support from other members of staff.
43. On 18 May 2020 Y returned to School 2 for three half-days a week while continuing at The Farm for two days. The same day Mr X and the Council signed a consent order agreeing to use the EHC Plan working document as the basis of a way forward in the appeal process.
44. Mr X wrote to School 2 on 21 May asking for a copy of Y’s risk assessment. He said he wanted to know what support the School would be providing Y under his EHC Plan and the reasons why any of the provision might not be made. He said he understood it was the Council’s duty to secure the provision but he could not get a response from the Council. The School provided a plan it said it had devised to support Y but did not specifically address his question.
45. When he felt he had not got a satisfactory answer he wrote to the School and the Council towards the end of May saying he still had no detail of which elements of the EHC Plan would be delivered. He said he was not involved in the risk assessment and it did not contain any detail. He said his son had received no support under his EHC Plan since the beginning of April 2020 and he had not seen a clear plan as to how it would be delivered.
46. Mr X wrote to the Council again on 31 May complaining that Y was not receiving the provision in his EHC Plan.
47. School 2 replied to Mr X on 1 June. It said Y would have a member of staff to carry out 1:1 sessions with him to support him overcoming his fear of learning. This would enable him to work in class and engage with work sent home and online.
48. Mr X has provided a copy of a school timetable for Y from 1 June 2020. This shows he was being taught in a group of six children supported by two adults, three days a week. It includes some 1:1 support and literacy and numeracy sessions. It notes that his ‘trusted adult’ may not be immediately available to Y at all times as she works with other children, but in that case another member of staff would be available to him.
49. The Council replied to Mr X’s complaint on 9 June. It referred to education being suspended with the national lockdown on 23 March. It referred to the offer to keyworker and vulnerable children as a “care offer rather than an educational one” and said initially the priority for the Government, schools and the Council had been to ensure the safety of pupils and staff. But once it received the Government guidance on risk assessment for pupils with EHC Plans, it had carried this out with him. It said his preference was to keep Y at home, with a review on 6 May. It referred to the discussions with School 2 and said the School had made a “virtual offer to meet other provision in the Plan and ….. offered staff support so he can access it”. It also noted it was positive Y could continue his two days at The Farm to help with his social isolation. Overall the Council said it was satisfied School 2 was making an “appropriate offer to meet Y’s needs in the context of the pandemic and the limitations this has created”.
50. Mr X responded saying he was pleased Y had his out of school provision but this was not education. He was also pleased School 2 was starting to make provision for him. However he quoted the Council’s ‘reasonable endeavours’ duties and said he had not seen the outcome of the risk assessment, or an outline of what the School could and could not provide. He confirmed he had agreed to keep Y at home until 18 May. But he said the School had not explored other ways of delivering the provision, Y could not access the self-directed online learning, and his suggestions had not been acted on. He said he wanted to make a formal complaint.
51. The Council said it would not register any further complaints from Mr X until the appeal process was over.
52. Following the Tribunal hearing on 5 June, the Council issued an amended final EHC Plan at the end of June naming School 2. There were some changes in the provision in section F. These were mainly in the description of approaches to teaching. Other changes were to add 30 minutes of teaching self-help strategies to improve Y’s memory, and to increase the amount of emotional literacy support and help with understanding and managing thoughts and feelings.
53. In mid-July, following an Annual Review meeting on 25 June, the Council wrote to Mr X to say it agreed to his request to do a reassessment of Y’s EHC needs. Mr X has provided a copy of a document from School 2 in support of his request. This shows what support the School was providing, why some elements could not be delivered because of COVID-19, and why it considered some of the provision specified was not appropriate in a specialist school.
54. Mr X says the placement at School 2 broke down and Y left at the end of term in July 2020. From September 2020 Y received a bespoke package of support delivered by The Farm for two days a week and by a 1:1 teacher for the remaining three days, away from the school site. He says Y “has been well supported” but he feels his EHC Plan does not reflect the support Y is actually receiving.
55. The Council replied to Mr X’s complaint at stage 2 on 25 September 2020, as follows.
• 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.
56. In October 2020 the Council issued a new final amended EHC Plan following the re-assessment. Mr X has appealed to the SEND Tribunal.

Analysis – was there fault causing injustice?

57. 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

58. 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.
59. 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.
60. 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.
61. 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.
62. 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.
63. 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

64. 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.
65. 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.

66. 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.
67. 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.
68. 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.
69. 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

70. 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

71. 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.

Agreed action

72. 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.

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Final decision

73. 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.

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Investigator's decision on behalf of the Ombudsman