Summary: Mrs X complained about how the Council dealt with assessing her son’s Education Health and Care needs during the COVID-19 pandemic and says he missed out on education and support as a result. The Council followed national advice and guidance on carrying out assessments and so it was not at fault. There was some fault in the way it communicated with Mrs X. The Council has agreed a suitable remedy.

The complaint

1. Mrs X complained that the Council has:
1. failed to deal with her son's Education Health and Care Plan properly. This includes delay in carrying out the assessment and issuing the final Plan, lack of proper consultation with schools and poor communication with her; and
2. failed to offer any education or support to her son while he was unable to attend nursery or school during the COVID-19 pandemic because he is on the clinically vulnerable list.
2. As a result she says her son has missed out on education and support with his special needs.

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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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1), 26A(1) and 34(3), as amended)
4. 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)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. We cannot investigate once the person has appealed. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the ‘SEND Tribunal’.
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. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries, including comments from the Educational Psychologist involved. I spoke to the Council’s Principal Educational Psychologist over the telephone. I considered relevant law and guidance on Education Health and Care assessments and Plans. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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 may have an Education, Health and Care (EHC) Plan, following an assessment of their needs. The EHC Plan 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.
     
11. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ sets out the law and guidance for councils to follow in assessing and providing for pupils with special educational needs.
• Where a local authority receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment.
• If the council decides to issue an EHC Plan following an assessment it must first issue a draft for the parents or young person to consider and give them 15 days to comment.
• The whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific exceptions apply)
12. As part of the assessment councils must gather advice from relevant professionals. This includes:
• the child’s education placement
• medical advice and information from health care professionals involved with the child
• psychological advice and information from an Educational Psychologist (EP)
• social care advice and information
• advice and information from any person requested by the parent or young person, where the council considers it reasonable
• any other advice and information the council considers appropriate for a satisfactory assessment.
13. The parent or young person has a right to ask for a particular school to be named in an EHC Plan. The Council must agree to that preference unless:
• it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
• the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources.
14. The council must consult the school concerned and consider their comments very carefully before deciding whether to name it in the EHC Plan.
15. There is a right of appeal to the SEND Tribunal against a decision not to assess, not to issue an EHC Plan or about the content of the final EHC Plan.

Impact of COVID-19

16. 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”. This reminds councils that basic record keeping is vital during crisis working, and decision-making should be open and transparent even under emergency conditions. There should always be a clear audit trail of how and why decisions were made.
17. On 23 March 2020 schools closed to most pupils other than vulnerable children, including those with EHC Plans, and children of key workers. The Coronavirus Act issued on 25 March 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.
18. 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. This temporarily removed the time limits for completing EHC needs assessments and issuing final EHC Plans where it was impractical or “not reasonably practicable” to meet them for reasons connected with COVID-19. Instead, councils had to complete the process “as soon as reasonably practicable”. These changes applied from 1 May to 25 September 2020. Other requirements such as the need to seek advice from professionals and to give an opportunity to comment on draft EHC Plans were not changed.
19. The Government issued non-statutory guidance, ‘Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)’. This gave examples of how councils might need to adapt to new ways of working. For example it says where there is not enough recent information about a child readily available, professionals may be able to:
• carry out observations of the child if they are still in a setting where this can be done in line with guidance on reducing transmission of the virus; or
• gather information by telephone or by a virtual meeting.

Council’s advice to Educational Psychologists during COVID-19

20. From 19 March 2020 the Council sent regular emails to the Educational Psychology Service updating staff on advice from the Government and the British Psychological Society (BPS), the professional body governing the work of Educational Psychologists (EPs). The Government advice was to work from home wherever possible. BPS advice was not to carry out visits to homes, schools or other settings. It advised that EPs should write advice reports based on existing evidence, supplemented with contact with teachers, professionals the child and parents. Initial advice was to review paperwork on all cases and prepare advice as far as possible without a visit. Then when they could conduct visits with children again they would be able to arrange to visit and complete the advice.
21. Based on this advice the Council produced a template for EPs to use in reports to explain how their advice was completed, for example whether it was based on telephone consultation or remote technology. They had to say whether the advice was complete or more in-depth assessment may be needed.
22. When schools re-opened in September 2020 the Council issued guidance to education staff on carrying out home visits and visits to schools and colleges. It advised staff to consider whether a visit was necessary and appropriate or whether the task could be carried out successfully remotely. It provided advice about precautions to take to conduct visits safely.

Admission to school of children below compulsory school age

23. A child becomes of compulsory school age from the beginning of the term after the term in which they turn five. Until then parents do not have a duty to send the child to school.
24. Admission authorities (including councils) must make sure children can start school, if the parent wishes, from the September following their fourth birthday.

What happened

25. The following is an outline of key events relevant to my investigation. It does not cover everything that happened.
26. Mrs X has a son, G, who has complex health needs. He turned five in February 2021. This means he became of compulsory school age at the beginning of the summer term in April 2021, but was allowed to start school from September 2020 if Mrs X wanted him to. G was attending a nursery until November 2019 when Mrs X withdrew him as she felt he was struggling there.
27. On 1 November 2019 Mrs X asked the Council for an EHC needs assessment of her son. The Council wrote to Mrs X on 6 December 2019 refusing her request and explaining her right of appeal. It responded within the six-week time limit. It said it would consider another request in future if there was further evidence available.
28. In March 2020 Mrs X started taking G to another nursery for a few sessions a week. When nurseries, schools and colleges closed to most pupils because of the COVID-19 pandemic, she decided not to take G to the nursery because she says his GP advised he was clinically vulnerable.
29. Mrs X gathered further evidence in support of her request for an EHC needs assessment. She asked the Council to re-consider its decision by taking it to its Local Management Team (LMT) Panel. In mid-April the Panel decided not to carry out an EHC needs assessment based on the information currently available. It considered that while G had medical needs, he was working at age-appropriate levels. However it agreed to allocate extra high needs funding to allow whatever school he attended to support his exceptional medical needs. The Council wrote to Mrs X with its decision on 27 April and advised her about her right of appeal.
30. Also in mid-April G was offered a place at the school Mrs X had applied for. This was School 1, a mainstream primary school. Mrs X did not accept the place because by this time she wanted G to attend School 2, which is in another council area. School 2 is a specialist school for pupils with physical disabilities and severe learning difficulties (SLD). School 1 told the Council it did not consider it was an appropriate placement given the severity of G’s medical needs.
31. The Council considered the request for School 2 at the LMT Panel but decided G did not need a specialist placement, and a mainstream setting was appropriate. There was further correspondence between Mrs X and the Council about her request for an EHC needs assessment and a specialist placement and the case returned to Panel again.
32. On 12 May 2020 the Council agreed to carry out an EHC assessment and told Mrs X the following day. It wrote to her on 19 May confirming its decision and explaining the next steps in the process. It advised that because of reduced staffing levels and redeployment of staff due to the COVID-19 outbreak, it might be difficult for the Council to meet the statutory timescales for the assessment. But it said if there was going to be a delay it would keep her updated.
33. On 19 May the Council sought advice from professionals involved with G, including the EP. The EP contacted the Speech and Language Therapist involved and completed a review of the paperwork on 27 May. He decided there was not enough information to produce an EP report and he would need to carry out an assessment with G.
34. Discussions continued between Mrs X and the Council about a school placement and why Mrs X felt G needed a specialist school. The Council still did not agree, but it contacted School 2 to ask if it would be willing to meet G and Mrs X so it could make an initial assessment until the EP could see G once lockdown restrictions were lifted.
35. At the end of May 2020 Mrs X wrote to the Council to ask for the EP assessment to start as soon as possible. In mid-June she asked whether the EP would be able to visit using personal protective equipment, as she said other agencies were doing. The Council responded saying it was reviewing the position across the County to decide how it could gradually return to more normal working. It said it would tell Mrs X as soon as it was possible to resume the assessment.
36. In June School 2 agreed to observe G in a classroom at a social distance to provide an initial assessment. Following this it told the Council although it felt G “may be too able” for the School it was willing to offer him a short-term assessment place from September. The Panel considered this offer in June but decided again that an SLD specialist school was not suitable for G based on the existing information.
37. The Council wrote to Mrs X to explain its decision on 11 June. It said one of the things it had to consider was whether a placement was likely to remain suitable in the long term. It said it could be unsettling for a child to start at a specialist placement and then have to move to another placement. The Council advised Mrs X she could either take up the place at School 1 with the extra funding for G or delay starting school until after the EHC assessment was complete. At that point it could consider whether School 2 was suitable for him. The Council also referred to the EP assessment that had been delayed because of COVID-19 restrictions. It said it was particularly important in this case to have a full and detailed EP assessment as there was little educational information available on G. It said the Council had been in contact with the EP who was due to conduct the assessment and was waiting to hear whether there were any arrangements that could be made to start the assessment “in a safe and ethical way”. The Council has not provided details of the outcome of this discussion.
38. Mrs X made a complaint to the Council on 18 June. She complained that it was seven weeks since the Council had agreed to carry out the needs assessment and she had had no contact from an EP. She said the Council had provided her with little information or support.
39. The Council replied in early July. It explained the temporary changes in the law about assessment timescales because of the pandemic. It said this meant it had had to change some aspects of its work in relation to assessments. As it did not have much information for the EHC needs assessment at the outset there needed to be an EP assessment. It said in line with advice from their professional body, EPs were not currently conducting detailed face to face assessments with schools and children. This meant it had not been possible for an EP to complete a “quality assured, professional assessment” of G. This had an impact on its ability to complete the assessment within 20 weeks. It said it was reviewing the position every week and would make every effort to complete the assessment in a timely way.
40. The Council also explained it wanted to wait for the outcome of the assessment rather than agree a place at School 2 as, on the existing information, it did not consider a school for pupils with SLD appropriate for G. It also noted it had offered her an ‘Engagement Facilitator’ to work with her to help her with the EHC Plan and communications with the SEND team. It said the offer remained open.
41. After further correspondence the Council replied to Mrs X on 18 August explaining why the EP could not visit. It repeated the information given previously. Also it said it was very important for the EP to observe G in an education setting to provide accurate and appropriate advice for the EHC needs assessment. It asked Mrs X to confirm which school G would be attending in September so the EP could arrange an appointment.
42. Mrs X told the Council G would not be attending school in September as School 1 had said it could not meet his needs and he did not have another suitable placement. She suggested the EP could discuss G’s needs with staff at his previous nursery. She also said the EP could visit him at home to assess him as other professionals involved with him were doing. The Council agreed to pass on this message to the EP. The EP obtained further information from the Speech and Language Therapist who had seen G.
43. In late August Mrs X was in contact with the Council asking for contact details for the EP so she could approach him directly.
44. The Council wrote to Mrs X on 1 September saying it was waiting for further guidance about visits and would provide details of the EP as soon as possible. The following day the EP wrote to Mrs X to confirm he had been allocated.
45. The EP spoke to Mrs X and carried out observations of G remotely by video conference on 3 and 8 September while they were at home. At the request of Mrs X the EP also spoke to staff at the nursery had attended. He contacted other professionals involved with G over the following two weeks.
46. The EP produced his report in early October. The Council sent the report to Mrs X and held a meeting with her in mid-October to discuss the outcome of the EHC needs assessment. At this meeting Mrs X confirmed she did not plan to start G at school until he turned five. She did not wish to return him to the nursery as she said it was too long a journey.
47. The Council agreed to issue an EHC Plan and sent Mrs X a draft Plan on 26 October, inviting her to request a school placement.
48. In her response to the draft Plan the following day Mrs X asked for a place at School 2. Council consulted School 2 and the council where School 2 is located the same day. School 2 responded on 3 November declining to offer a place.
49. The Council issued a final EHC Plan on 6 November. This gave the type of placement as a mainstream school but did not name a particular school. The Council advised Mrs X of her right of appeal. A few days later Mrs X requested another specialist school, School 3, a school for pupils with SLD. The Council consulted School 3 on 18 November. The Council referred the case to the LMT Panel to consider whether to name a specialist school. In early December the Panel decided, based on the reports seen, that an SLD school was not appropriate for G. It felt it would be detrimental to his development as he was working at levels well above those of his peers in an SLD school. It agreed the Council could consult another specialist school Mrs X was considering, School 4, to see if that was more appropriate. School 4 replied saying it did not consider it could meet G’s needs.
50. In mid-December 2020 the Panel decided to consult the nearest mainstream school, School 5, and School 1 where G had been allocated a place. Both schools responded a few days later saying they were not suitable for G. The Panel considered the matter again, saying it had “deliberated long and hard” and still believed G’s medical needs could be met in a mainstream school with reasonable adjustments and support. However it agreed to consult another specialist school which was for higher ability pupils than an SLD school, School 6.
51. Mrs X appealed to the SEND Tribunal on 21 January 2021 for a placement at School 2.
52. G turned five in February 2021. The Council offered Mrs X a package of alternative education for G, including home tuition.

Analysis – was there fault causing injustice?

Complaint a) – EHC needs assessment

53. The Council agreed to carry out an EHC needs assessment on 12 May, after initially refusing. From this point, to meet the 20-week statutory timescale, the Council would normally have 14 weeks to complete the assessment and issue a final EHC Plan. (This timescale takes into account the six weeks councils have to respond to the request for an assessment, in other words taking 12 May as week six). This would have been 18 August 2020.
54. In this case the decision to assess came during the period when the temporary COVID-19 legislation applied. The final EHC Plan was issued on 6 November, so the assessment process took just over 25 weeks to complete from the date the Council agreed to carry it out. This is 11 weeks longer than the normal rules require.
55. The reason for the delay was that the Council needed an EP report to inform the assessment. The EP report was not completed until early October after observations carried out in September. I do not consider there was unreasonable delay from the point when the EP carried out the observations. He obtained further evidence from professionals involved with G and completed the report after reviewing the paperwork. The Council then issued the draft EHC Plan around three weeks after receiving the EP’s report. It consulted Mrs X’s preferred school promptly after receiving her response to the draft Plan and issued the final Plan within a few days of receiving the School’s response.
56. As the main hold-up in the EHC needs assessment was the EP assessment, I have considered the reasons for the delay in completing the EP assessment and whether it would have been ‘reasonably practicable’ for the Council to have completed it earlier.
57. The Council has explained and provided evidence that it was acting in line with advice from the Government and the relevant professional body overseeing the work of EPs not to carry out face to face visits from March to September 2020. The EP acted in line with advice from the Council to start the assessment based on a review of existing information and contact with relevant professionals. His professional judgment was that he needed to observe G, preferably in an education setting, in order to produce a full report. The EP has provided a detailed explanation as to why seeing a child in an education setting is preferable, and why he did not consider it would have been appropriate to see G at home. The Council and the professional body advised that this was the least COVID secure means of contact as it was not possible to control the environment. G was in a high-risk group because of his medical condition. The EP felt a cautious approach was particularly necessary in this case.
58. The EP has also explained why he did not consider seeing G at an alternative venue such as Council offices appropriate either. He took account of Mrs X’s wishes not to travel with G.
59. The Council reviewed the position every week, and provided updates to staff. When schools were due to re-open in September 2020 the Council reviewed its policy and allowed visits to start again, where necessary. The Council says G’s assessment was one of the first to resume. At this time, however, G was still not in any nursery or school. The EP therefore decided to complete the assessment through discussion with Mrs X and observations of G via video conference.
60. I recognise that Mrs X was very unhappy about the delay. But on balance, taking into account the advice the Council received about carrying out assessments under COVID-19 conditions, and the professional judgment of the EP involved, my view is that the Council completed the assessment as soon as reasonably practicable.
61. Mrs X complains about the Council’s communications with her. There was a great deal of correspondence between Mrs X and the Council. Also the Council offered her an ‘Engagement Facilitator’ which she did not take up. But I consider that the Council did not keep her fully informed about the reasons for the delay in completing the EP assessment in the early stages. When the Council first agreed to carry out the EHC needs assessment in May 2020 it told her generally there might be difficulties in completing it. But I have not seen evidence that it told her the EP assessment had started or that it gave her any detailed reasons for the delay until it replied to her formal complaint in early July. So I consider there was some fault in the Council’s communications with Mrs X. This caused her frustration and anxiety.
62. Mrs X also complains that the Council failed to consult with schools properly. However the evidence I have seen shows that when the Council issued the draft EHC Plan in October 2020 and Mrs X formally asked for a place at School 2, it consulted the School promptly. After issuing the final EHC Plan without naming a school, it continued to consult schools Mrs X requested, again doing so promptly. Before issuing the draft Plan the Council also considered Mrs X’s requests for a specialist SLD placement and explained why it did not consider this appropriate for G. Mrs X is clearly very unhappy with the Council’s view but that is a matter for the Tribunal. Based on the information I have seen I do not find fault with the way the Council dealt with the school consultations.
63. Mrs X was also unhappy that the Council did not allow her to take up the offer of an assessment place at School 2. This is understandable as she feels this would have allowed the EHC needs assessment to have been completed earlier. However the Council considered the matter at the LMT Panel, took account of School 2’s views and the information it had about G, and explained its reasons to Mrs X. I could not say it was at fault in how it reached its decision and so I cannot criticise the decision made.

Complaint b) – lack of provision

64. From March 2020 Mrs X decided not to take G to the nursery he had been going to because of concerns about the risks to his health due to COVID-19. Then from February 2021, when G turned five but had no placement named in his EHC Plan, the Council offered a package of alternative education for him outside of school.
65. Mrs X complains that G missed out on education and special needs support because he had no suitable school place from September 2020 when he became eligible to start school.
66. The Council told Mrs X there was a place available for G at School 1 from September 2020 with additional high needs funding to support his medical needs. Mrs X did not wish to send him there as she did not think a mainstream school was suitable and School 1 had said it did not think it could meet his needs. School 1 is a community school and so the Council is the admissions authority. As the Council had allocated Mrs X a place for G there, she could have taken it up. Again, it is understandable that she did not wish to do so when she did not think it was suitable for her son. She told the Council she would wait until G turned five before sending him to school. But she says if the Council had named a specialist school in the EHC Plan, as she wanted, G would have started school earlier.
67. It is not for the Ombudsman to say which school is suitable for G. Any dispute about which school to name in the EHC Plan is a matter for the SEND Tribunal, and Mrs X has appealed over this issue. So I cannot investigate this matter.
68. The Ombudsman would criticise the Council if there was unreasonable delay in issuing the final EHC Plan which then delayed her right of appeal. But for the reasons I have given, my view is the Council did not delay unreasonably in the context of advice received during the school closure period. In any event I cannot say Mrs X’s preferred school would have been named in the EHC Plan until we know the outcome of the appeal.

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Agreed action

69. The Council has agreed to apologise to Mrs X and make a payment of £200 to recognise the frustration and anxiety she experienced as a result of not keeping her fully informed about the reasons for the delay in the assessment in the early stages. It should take this action within one month of the final decision on the complaint.

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Final decision

70. I have not found fault in the way the Council dealt with the EHC needs assessment. There was some fault in its communications with Mrs X. The Council has agreed a suitable remedy for the injustice caused and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman