Summary: Mr X complained about lack of support for his son under his Education Health and Care Plan during the COVID-19 lockdown. We find there was some fault by the Council which is likely to have contributed to the lack of support provided by the school. The Council has agreed to apologise and make a payment of £300 to Mr X.

The complaint

1. Mr X complained that the Council failed to ensure that as far as possible his son received the support set out in his Education Health and Care Plan while his school was closed to most pupils during the COVID-19 pandemic.
2. As a result he says his son missed out on support he should have had and could not access the education offered properly.

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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. 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

6. 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 special educational support. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments and the further information they provided before making a final decision.
7. 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

8. 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. 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.
9. 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

10. 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'.
11. 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

12. 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 issued an open letter on 24 March asking councils and education providers 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.
13. The Government 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.
14. 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

15. In the open letter issued on 24 March 2020 the Department for Education also 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".
16. On 1 May 2020 the Secretary of State issued a notice under the Coronavirus Act to give councils more flexibility 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.
17. 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.
18. 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".

19. 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.
20. 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.
21. 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.
22. 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.
23. 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 arrangements in response to the pandemic

24. In response to the Government advice in late March 2020 the Council devised a strategic process involving relevant Council teams and education settings for identifying pupils needing risk assessments, carrying out the assessments, gathering the information, and following up on cases where children were not at school and there were concerns about their safety.
25. On 30 March the Council wrote to all schools, attaching a risk assessment spreadsheet and saying it would use these to ensure any health or social care support needed at home or at school could be put in place. It included a link to Government guidance on vulnerable children and young people. It advised that the expectation was the risk assessment would consider the needs of all children and young people with an EHC Plan, "alongside the views of their parents".
26. The Council says schools carried out most of the risk assessments by telephone with the parents/carers.

What happened

27. Mr X has a son, Y, now aged 15, who has a medical condition causing digestive problems, fatigue and abdominal pain. Y also has some sensory processing difficulties. He attends a mainstream school, School 1, and has an EHC Plan. Mr X also has a younger child with a medical condition.
28. At the time of the events in this complaint Y's EHC Plan included the following:
• access to a Teaching Assistant for 30 hours a week for individual, paired and small group intervention working under the guidance of the class teacher and the School's Special Educational Needs Co-ordinator (SENCo)
• staff approaches to communicating with Y to ensure his understanding
• strategies to help him with carrying out tasks, making him feel safe and secure in school, and participating in activities
• differentiation of work
• support before lessons to help him understand key concepts and vocabulary.
29. When the lockdown occurred on 23 March 2020 Mr X decided not to send Y to school.
30. The Council says School 1 carried out a risk assessment in line with the processes it had put in place. The School completed the risk assessment on 24 March 2020 and sent it to the Council on 1 April. The document the Council has provided records that Y would not be at risk at home and would not be attending school because of the health risks to his younger sibling. Mr X says although he told the School he would be keeping Y at home, he did not speak to anyone at School 1 about the risk assessment or about what support could be provided.
31. Mr X says he received a generic email from School 1 giving details of how to connect to its remote online learning programme.
32. On 21 April 2020 Mr X wrote to the Council to say Y had not been receiving any of the support under his EHC Plan since he stopped attending school. He said Y had not had any differentiated work, no direct communication with him as an individual, no 'pre-tutoring' and no targeted support. He sent a copy of his complaint to School 1.
33. I have not seen evidence that the Council contacted School 1 at this point. But the following day, after returning from the Easter holidays, one of Y's teachers contacted Mr X by email saying she had noticed Y had not uploaded any work since the beginning of lockdown. She explained how Y could post questions and private comments for her online. She offered to produce tailored versions of the lessons for him.
34. The School also says it offered support from an experienced Learning Support Assistant (LSA) who knew Y to tutor him virtually in English and maths, but Mr X declined this offer. Neither the School nor the Council has said when this offer was made. Mr X denies that he declined the offer of tuition. He has provided evidence of messages between him and the prospective tutor on 22 April 2020 about how support might be provided. She said she would talk to the SENCo and get back to him but Mr X says he heard no more.
35. During April Mr X continued to correspond with the Council. The Council said it would use reasonable endeavours to provide the support for Y under his EHC Plan. Mr X replied saying the change in the law would not take effect until 1 May. Then on 1 May he wrote to the Council asking what provision would be made for his son and the reasons for any variation from the support set out in his EHC Plan. The Council again replied saying it would use reasonable endeavours to ensure provision continued to be available to meet Y's needs. It said it would contact School 1 to discuss this further. The Council contacted School 1 on 5 May asking for details of the support it was providing and how it was differentiating work for Y.
36. On 7 May Mr X made a complaint to the Council. He said Y was still not receiving the support he needed and the Council should have contacted the School straightway when he reported the problem in April. He said he would like to use some of the funding for Y's EHC Plan to employ a virtual tutor for maths and English.
37. The Council acknowledged the complaint and said it had up to 20 days to respond.
38. The Council has provided evidence from School 1 saying that Mr X spoke to the School's SENCo on 13 May. Mr X asked the SENCo to speak to Y's teachers to ask for more help as Y was struggling with the work at home. The School says subject teachers responded with lots of contact in their subjects. It gave maths and construction as examples. Mr X says Y received good support in English and construction and some help with maths, but not the personal help with vocabulary and starting tasks set out in his EHC Plan. The SENCo also says he contacted the family every week from the start of lockdown, but they often did not answer and did not respond to messages he left.
39. In mid-June Government advice changed and schools were encouraged to accept more pupils in certain year groups back to school. At that point School 1 offered face to face teaching for Y. However Mr X told the School Y could not take up this offer as he was recovering from surgery. In early July the SENCo contacted Mr X to offer Y 1:1 support himself. Mr X declined as he felt Y had not fully recovered and would not be able to engage.
40. The Council replied to the complaint on 8 July, explaining that the officer Mr X had sent the complaint to had passed away in June and the complaint had been forwarded to another manager. The response included the following:
• The risk assessment for Y showed Mr X had decided Y would remain at home.
• "For children with EHC plans who are being cared for at home, their individual risk assessments would include communication plans to ensure that regular contact is maintained with key school staff. These communications could also include individual expectations for home learning, discussions around appropriate learning activities, adaptations to learning resources/activities and discussions of strategies for supporting children at home."
• It referred to the contact from the School on 22 April and provided information about maths tasks Y had completed with the support of his teacher.
• It considered the School had used its 'best endeavours' to support delivery of provision in Y's EHCP given the emergency situation it was facing. It said it was evident the School had communicated with him, provided support where required, and offered to differentiate work to enable Y to access education in areas he found challenging.
41. Mr X was not satisfied with the response. The following day he asked to take his complaint to stage 2. He said he needed to know what provision was made for his son. He said a couple of emails from the School was not enough to show the Council had used reasonable endeavours to put the provision in place. The Council said it would respond by 31 July 2020.
42. Correspondence between Mr X and School 1 continued during July. Mr X was asking about the risk assessment and what elements of provision in the EHC Plan would be delivered. The School replied on 17 July. It sent Mr X a copy of the risk assessment form and said this was the only document the Council had asked it to fill in. In its response the School accepted and apologised for some failings in the way it had dealt with Y's education in the early stages of lockdown.
• It said the SENCo should have spoken to Mr X and Y to discuss Y's access to education as part of the risk assessment process and "how the provision would look for [Y] whilst working remotely".
• It recognised Y did not receive as much support as he should have done in the initial phase of lockdown.
• It said it could have been quicker to try and identify areas for immediate review and implementation such as getting LSAs working straightaway with pupils with EHC Plans.
43. The Council sent Mr X its stage 2 complaint response on 14 August, apologising for delay at both stages of the complaint. It said it had responded to his concerns in detail in the first stage of the complaint process and so there was nothing further it needed to do about these concerns. It offered Mr X £150 to recognise the delay in dealing with the complaint and any distress this may have caused.

Council's response to the Ombudsman

44. The Council says it worked quickly and dynamically to provide an immediate response to the national pandemic by engaging directly with schools to secure the welfare of its most vulnerable children. It said in collaboration with schools there were 8,500 risk assessments of pupils with special educational needs and disabilities carried out. It recognised that the first week of lockdown was a period of challenge for all schools and local authorities in the country and said the Easter holidays allowed time for schools and the Council to plan and adapt new ways of delivering education. It said in the circumstances it believes it used reasonable endeavours to put provision in place while Y remained at home.
45. However the Council says it agrees with Mr X that an Annual Review to discuss any gaps in Y's learning would be appropriate. It will also discuss access to the Government's Universal Catch-up Fund through School 1.

Analysis - was there fault causing injustice?

46. The complaint covers the period from 23 March to 31 July 2020. Up to 1 May the Council's full duty to ensure provision in Y's EHC Plan applied. From mid-June Y was recovering from surgery and would not have been able to engage with any additional support that could have been provided. The School has recognised it could have done more to offer individual support to Y at the beginning of the lockdown period. I cannot investigate or recommend any remedy for the direct impact of the School's actions. I have considered the Council's actions in relation to School 1 and Mr X and his son.

23 March to 30 April 2020

47. It was undoubtedly a huge task for the Council, in common with all other local authorities, to respond at short notice to the impact of the COVID-19 pandemic on its education and children's social care services. In my view it took prompt action to put a system in place for carrying out risk assessments and identifying children most at risk. It circulated information to schools about risk assessments within a week of the Government announcement of the lockdown and school closures.
48. School 1 has apologised to Mr X for not involving him and his son in the risk assessment. In terms of the initial assessment as to whether Y should remain at home or go into school, I do not consider this was the result of fault by the Council. The Council sent guidance to schools at the outset confirming they should involve parents/carers in the risk assessment, and the School has recognised it failed to do so. In any event it was Mr X's decision to keep Y at home and so the outcome would have been the same even if he had been involved.
49. Mr X says Y struggled with the work the School set and, as he did not receive enough individual support, he became disengaged with learning. The provision Mr X says was lacking from Y's EHC Plan was intended to be school-based. Councils and education settings had to respond rapidly to put remote learning systems in place for those children who would not be attending school. Given the scale of the task the Council was facing to ensure vulnerable children were safeguarded, and in the absence of any national guidance at this stage about how to make provision for pupils with EHC Plans 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 in every case that a child was receiving the support set out in their EHC Plan during this period.
50. However I would expect the Council to respond to concerns raised about lack of provision and take steps to address them. In this case when Mr X contacted the Council on 21 April 2020 I have not seen evidence that it took up the matter with School 1 until 5 May, two weeks later. I consider this delay was fault but it did not affect the provision of education to Y as by this time one of Y's teachers had already contacted Mr X with the offer of extra help.

1 May to 31 July 2020

51. For this period the Council had a duty to make reasonable endeavours to ensure EHC Plan provision was made. In line with Government guidance issued on 30 April 2020 the Council should have ensured there was a record of which elements of the support set out in the EHC Plan the School would be providing while Y was out of school, and how any of the support would differ from the Plan. Mr X should have received a copy of this. I have not seen evidence showing the Council or the School considered this matter or shared its plan with Mr X.
52. In response to his stage 1 complaint the Council told Mr X that risk assessments should have included a discussion about strategies and adaptations to support home learning. The School has accepted it should have done more to involve Mr X and his son in discussions about how support could be provided remotely.
53. But in my view the Council contributed to the failings. This is because I have not seen evidence that it advised the School about the need to discuss with parents and pupils and decide in each case what support could reasonably be provided and how. The risk assessment spreadsheet the Council produced does not seek information about this, although it does refer to the possible need for a 'reduced learning package' and how many days a week this would be needed. The Council produced the spreadsheet before the Government introduced and issued guidance on the reasonable endeavours duty. But, as the School confirmed, it did not receive any other forms from the Council or other requests seeking this information.
54. It is unrealistic to expect the Council to have undertaken this task itself given the number of assessments needed. But I consider it could reasonably have advised schools of the need to do so once it received the more detailed guidance, and kept a record of the outcome.
55. Based on the information I have seen so far I consider the Council was at fault in failing to identify, record and share with Mr X which parts of the support in the EHC Plan would be delivered. Mr X asked the School and the Council repeatedly for this information but he did not receive it. This caused Mr X some frustration and meant he did not know in any detail what support his son would receive. If he had had this information earlier it might have helped him press for more tailored support from School 1 sooner. It would not have had an impact from mid-June when Mr X said Y could not access any education because of his health condition.
56. There was delay in responding to the complaint at both stages. The Council has accepted this and offered a suitable remedy. In any event during May and up to early July School 1 offered Y some extra support, some of which Mr X did not wish to accept.
57. On the evidence seen so far I consider there was some fault by the Council in failing to properly follow the guidance on identifying what provision could be made under Y's EHC Plan, and in not taking enough action to raise Mr X's concerns with the School. Because of the failings identified, my view is the Council has not demonstrated adequately in this case that it used reasonable endeavours to ensure Y received the support in his EHC Plan. On balance I consider this is likely to have contributed to, but was not solely responsible for, some of the lack of educational support Y received while he was out of school. I cannot say what extra provision Y would have had without the fault.

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Agreed action

58. The Council has agreed to apologise to Mr X and make a payment of £300 to recognise its contribution to the lack of support Y received. Mr X and Y will also be able to discuss with School 1 any opportunities there may be for Y to access the national catch-up funding to address any gaps in his learning. I have not made any recommendations for improvements in procedures as the period when the reasonable endeavours duty applied is now over.

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Final decision

59. I have found there was some fault by the Council in the way it dealt with the provision under Y's EHC Plan. I am satisfied with the action it has agreed to take to remedy the injustice cause and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman