Summary: Mrs X complained about the Council’s handling of the review of her son’s Education Health and Care (EHC) Plan and lack of therapy provision during the COVID-19 lockdown. We find that the Council delayed issuing the EHC Plan but this did not disadvantage Mrs X’s son. The Council took reasonable steps to deliver therapy provision when services were suspended because of the pandemic.

The complaint

1. Mrs X complained that the Council:
1. failed to follow the proper process following the Annual Review of her son's Education Health and Care (EHC) Plan in May 2019, which meant the 2020 Annual Review took place before the 2019 one was completed; and
2. failed to carry out a risk assessment or ensure all reasonable steps were taken to provide the support set out in his EHC Plan while his school was closed due to the COVID-19 pandemic.
2. As a result she say she lost the opportunity to appeal, and her son received none of the therapies in his EHC Plan from March to July 2020.

Back to top

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. 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)

Back to top

How I considered this complaint

6. 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. I considered relevant law and guidance on provision for special educational needs. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received 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.

Back to top

What I found

Education Health and Care Plans

8. 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. We cannot direct changes to the sections about education, or name a different school. Only the SEND 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)
    
10. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out EHC assessments and producing and reviewing EHC Plans. It says:
• Councils must review an EHC Plan at least every 12 months. The first review must take place within 12 months of the date when the EHC plan was issued, and then within 12 months of any previous review.
• As part of the review the council must ensure there is a meeting. The council must write to the child’s parent or the young person within four weeks of the review meeting to say whether it proposes to keep the EHC Plan as it is, amend it or end it.
• If the Plan needs to be amended the council should start the process of amending it without delay. It must send the child’s parent or the young person a copy of the EHC Plan with details of the proposed amendments and any evidence it has supporting the amendments. It must give them 15 days to comment.
• If the council decides to amend the EHC Plan following the representations it must issue the final amended EHC Plan within eight weeks of the original amendment notice. It must tell the parent or young person about their right of appeal.

Impact of the COVID-19 pandemic

11. 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’.
12. 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

13. 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 ‘vulnerable’ children. These included children with EHC Plans. The government asked councils to carry out risk assessments for children who had an EHC Plan to determine whether their needs could be met at home and whether they would be safer there than attending an educational setting.
14. 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:
• Local authorities and education settings should decide together who is best placed to undertake the risk assessment, "noting that the duty to ensure provision remains with the local authority".
• The risk assessment should take account of the views of the parents or carers and the child or young person. It will need to balance a number of factors such as the potential health risks to the child of going into school, the risk of not receiving parts of the support in the EHC Plan in the usual way, and the ability of the parents to ensure they can meet the child’s health and care needs at home for a long period.
• Risk assessments should be ‘proportionate’ and will need to be reviewed as circumstances change.

Providing the support in an EHC Plan

15. 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.
16. The Government issued guidance about the changes, ‘Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)’. This noted:
• 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.
• If it is not possible to arrange or secure full the 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.
• The council should keep a record of the provision it decides it must secure or arrange and share this with the parents or young person, explaining why any provision differs from what is set out in the EHC Plan.

Background

17. Mrs X’s son, B, now aged nine, has a medical condition causing some physical disabilities, difficulties with co-ordination and developmental delay. B has an EHC Plan. His EHC Plan issued in June 2018 included provision for:
• 63 hours a year of speech and Language therapy (SaLT), mostly direct face-to face therapy with some time for developing programmes, reviewing progress and supporting school staff
• 51 hours a year of Occupational Therapy (OT), including 38 hours of direct therapy sessions
• 33 hours a year of physiotherapy, including direct therapy sessions and time for reviews and advice and support for school staff.

Events from May 2019

18. An Annual Review meeting took place on 21 May 2019. The therapists recommended a significant reduction in the amount of direct OT and SaLT for B. The school sent the paperwork from the meeting to the Council on 3 June, noting that Mrs X did not agree with the reduction in therapy hours.
19. The Council sent Mrs X a copy of a draft amended EHC Plan proposing the reduced therapy hours on 13 September 2019. Mrs X responded two weeks later, objecting to the draft Plan. She asked the Council to delay issuing a final Plan while she obtained independent reports. She also asked why it had taken the Council so long to issue the draft Plan.
20. The Council explained that the delay in issuing the draft EHC Plan was a result of staff sickness.
21. In January 2020 the Council says it introduced a redesigned SEND service and allocated new caseworkers to B’s case. It says it took the new team some time to adapt to new ways of working and it failed to action the next stage in the EHC Plan review process.
22. In February 2020 Mrs X complained to the Council about missed OT sessions. The Council accepted there had been some sessions missed because of staff sickness. It offered Mrs X a payment to make up for them.
23. When schools closed in March, Mrs X had a conversation with B’s school and agreed it would be best for B to remain at home. The Council advised schools there was no need to complete a risk assessment document if the school and parents agreed.
24. The Council wrote to parents on 8 April about the impact of the pandemic on the SEND Therapy Services. It explained that the NHS had redeployed staff involved in delivering these services to frontline work. Because of this, and social distancing guidelines, all direct therapy under EHC Plans would now stop immediately. The Council said it was reviewing the therapy provisions in EHC Plans and would do all it could to continue to meet the needs of the children and young people affected. It said the therapy provision service was updating care plans and would send them out to parents, the Council and education settings. It gave details of who to contact with questions about the care plans.
25. On 19 May the Council produced a letter for parents and carers about the temporary changes in the law because of COVID-19. It explained that each child or young person with an EHC Plan would have a ‘Reasonable Endeavours Plan’ drawn up after discussion between the parents, the child or young person, and the education setting. The SEND Team would also be involved. The plan would be kept under review and the Council would ask for feedback from parents. It gave details of where to go for help and support.
26. B’s school wrote to parents, including Mrs X, on 22 May with information from the Council about support to pupils with EHC Plans during the pandemic. It enclosed the following information:
• The letter from the Director of Education;
• A legal factsheet about the temporary changes in the law and what they meant, with a link to government guidance;
• A ‘key messages’ information sheet including information that: annual reviews would continue but may need to be held by telephone or online; there may be some temporary changes to the child or young person’s provision; there would be a written record of the decision and the reasons for it, shared with the parents, to be kept under review.
• An information sheet about the Reasonable Endeavours Plan explaining that the school would contact the parent in the next three weeks to discuss: where is the best place for the child to be; what can be delivered under the EHC Plan and how; and who is available to support the child. The school would keep a written record of the plan and send a copy to the Council and the parents.
• Details of how to provide feedback to the Council on the Reasonable Endeavours Plan and the support provided.
27. The Council has provided a copy of the Reasonable Endeavours Plan for B after the school spoke to Mrs X. The plan shows the school would provide online lessons and set work every day, including some differentiated learning. It provided videos and a resource pack for B to use at home with his parents. B had support from a Learning Support Assistant (LSA) for all lessons. The SaLT was in contact with Mrs X and the school contacted her by email and through the online learning programme. The record says the school shared the plan electronically with Mrs X.
28. In mid-June there is a record of a ‘Reasonable Endeavours Conversation’ with Mrs X which says the school was offering support remotely, including through an LSA. The class teacher had provided an individual learning programme for B. The school was keeping in touch with the parents and B through email, telephone and recorded video messages. The OT would design and maintain a programme to help B develop his independence skills and support staff in implementing it.
29. Around the same time the school called Mrs X to arrange an Annual Review meeting for 17 June. Mrs X replied by email, with a copy to the Council, saying the Annual Review and Reasonable Endeavours meeting could not go ahead. She said this was because the Council had not completed the previous review and she had never received the notice to amend the EHC Plan following the Annual Review meeting in May 2019.
30. There was then an exchange of emails between Mrs X and the Council over the following month about the proposed Annual Review meeting. This included a formal complaint by Mrs X. The Council said it had to carry out a review at least every 12 months. As the previous review had started on 21 May 2019 it said it had to hold another Annual Review meeting in the summer term in 2020. It said because of the difficulties caused by COVID-19 and the need for a meeting to discuss how the school would arrange provision in B’s EHC Plan during this period, it proposed to hold a combined Annual Review and Reasonable Endeavours meeting.
31. Mrs X argued that the Council’s interpretation of the law was wrong. She said it could not hold another Annual Review meeting until it had completed the process of reviewing the previous EHC Plan. But she said she was happy to discuss her son’s special educational provision during COVID-19.
32. The Council maintained its position. It referred to her request in late September 2019 not to finalise the EHC Plan until she had obtained further advice. It said it had no record of receiving any further correspondence from her.
33. In its response to Mrs X’s formal complaint the Council accepted there was “a significant delay” between the annual review meeting in May 2019 and the proposal to amend B’s EHC Plan in September 2019. It also recognised it had taken no further action to amend the EHC Plan since she had written at the end of September asking it to hold off finalising the Plan while she sought advice. The Council apologised for these failings. It confirmed it would now complete the review as she asked, and issue a final EHC Plan.
34. The Council sent Mrs X a final amended EHC Plan on 3 July, giving her the right of appeal. The amended Plan reduced the hours of SaLT and OT compared to the previous the EHC Plan of June 2018, but not by as much in the draft EHC Plan issued in September 2019. Mrs X did not appeal.
35. The school wrote to Mrs X in mid-July with notice of an Annual Review meeting to be held remotely at the end of term. It said the EHC Plan “must be reviewed within a year of the previous review and so the meeting will go ahead”. It said it would like to carry out a Reasonable Endeavours conversation at the end of the meeting.
36. The Annual Review meeting took place in late November 2020. Following recommendations from the SaLT and OT, the subsequent draft EHC Plan included the same significant reduction in therapies as in the proposed EHC Plan in September 2019. The Council issued the final amended EHC Plan including the reduced provision in February 2021, giving Mrs X the right of appeal.

Provision of therapies

37. The Council has provided the following information about therapy services provided to B from when schools closed due to the pandemic.
38. SaLT - The SaLT sent Mrs X a new care plan for B on 2 April 2020 by email. This reviewed previous targets, set new targets, and set up a home learning programme to support B’s language and communication. The SaLT also developed resources, sent them to the parents and recommended additional resources. The care plan noted the service would have to wait for the school to re-open to arrange further appointments.
39. The SaLT attended an online meeting with B’s school at the end of July to discuss B’s progress, outcomes and next steps.
40. OT - As the OT had completed a new programme in December 2019 it was still relevant in March 2020 and there was no need for a new plan. The OT called Mrs X on 23 March. Mrs X said she and her family were self-isolating but would like to remain in contact. The OT explained the service was working on setting up therapists to enable them to make contact via video calls. Mrs X said she would be able to continue the therapy at home as she had been coming to the sessions, but would like to be able to check in with the OT.
41. Physiotherapy – On 2 April 2020 the physiotherapist created a home exercise programme and emailed this to Mrs X, along with contact details for the service. As Mrs X had attended many of the sessions, the therapist felt Mrs X was confident in carrying out the programme.
42. The Council says all SEND therapy services were suspended and therapists redeployed. There was a ‘therapy hub’ operating from April to September 2020 answering enquiries from schools and parents and offering virtual support by email, telephone and video consultation. The Council says there is no record of B’s family contacting the hub to ask for support. It says the care plan and all therapists’ out of office email responses contained contact numbers and alternative email addresses.
43. There was also a dedicated SaLT SEND email inbox set up for schools and families of pupils with EHC Plans. The Council checked this daily. It says there is no record of contact or any request for support for B through this channel.
44. In September 2020 Mrs X made a complaint to the Council about lack of therapy services from when the school closed in March 2020 because of the pandemic. She said the Council had not made reasonable endeavours to support B and he had missed out on SaLT, OT and physiotherapy. She wanted the Council to make up for the missing sessions and to change the therapy provider.
45. In response to Mrs X’s complaint the Council said:
• She should take up her concerns about lack of therapy sessions with the therapy provider because the service was provided by the NHS, not directly by the Council;
• The school had said it had not been able to complete Reasonable Endeavours paperwork for B as Mrs X did not engage with this or with the Annual Review. However it said from the information the school had provided it could see the school was providing support to B virtually.
46. Mrs X made a further complaint about lack of therapy provision from September 2020. The Council agreed to make a payment to make up for the missed sessions.

Analysis – was there fault causing injustice?

Annual Review process

47. The Council started the review of the June 2018 EHC Plan on 21 May 2019. It should have sent Mrs X a notice saying whether it proposed to amend the Plan within four weeks. I have not seen evidence that it sent such a notice and Mrs X says she did not receive one. On balance I consider the Council was at fault in failing to send the notice. In any event if the Council decided to amend the EHC Plan it should have sent out the amended draft Plan ‘without delay’. It did not do so until 13 September 2019, nearly four months after the Annual Review meeting. This delay is fault. There was further delay in issuing the final amended EHC Plan. It did not do so until 3 July 2020, over a year after the Annual Review meeting, and only when prompted to do so by Mrs X. Although the Council was taking account of Mrs X’s wishes to delay finalising the EHC Plan, it was the Council’s responsibility to complete the process. It should have contacted Mrs X for the information and if she did not provide it, it should have issued a final EHC Plan.
48. However the delay did not disadvantage B as it delayed the reduction in his therapy provision. It delayed the right of appeal for Mrs X, but when she received the final EHC Plan in July 2020 she did not appeal. In response to the Ombudsman’s enquiries, the Council apologised for any stress and anxiety Mrs X experienced as a result of the delay. This is a suitable remedy.
49. Mrs X argues the Council should not have pressed her to hold an Annual Review meeting in June 2020 as it had not completed the review of the previous EHC Plan. There is no need for me to give a view on the differing interpretations of the Council’s duty as I have already found the Council was at fault in failing to carry out the review process properly. If the Council had acted without fault and issued the final EHC Plan in the required timescale the issue Mrs X was concerned about would not have arisen.
50. As it was, the next Annual Review meeting did not take place until November 2020. But again any delay here did not disadvantage B as it delayed the further reduction in provision.

EHC Plan provision under COVID-19

51. I do not consider there was fault in the way the risk assessment was carried out to decide whether B should remain at home during the lockdown. The government guidance allowed councils to agree that schools could do the assessments, advised they should be ‘proportionate’ and did not specify how they should be done. There is a record that Mrs X agreed B should not go into school and so there was no need for a more detailed assessment. The school sent the Council the information so it had a record.
52. Mrs X complains that the Council did not take adequate steps to ensure B received the support under his EHC Plan he should have had during the lockdown. Based on the information I have seen I find the Council made reasonable endeavours to put the support in place as far as possible, in line with government guidance.
53. It provided detailed information to education settings and parents about changes to education and SEND services because of the pandemic. It set up a process for schools to work with parents to look at how it would support pupils and share the information with parents. There is evidence that the school produced a plan in discussion with Mrs X and put it in place. B received support from the school with the online lessons.
54. It is clear B did not receive face-to-face therapies from when the school closed, up to the end of the summer term. I do not consider this was due to fault by the Council. The Council informed parents early on that the NHS had suspended direct therapy services and it explained the reasons. It explained what would happen next. It ensured that the therapy provider sent Mrs X care plans and provided resources to support her carrying out the therapies at home. There were support services set up for parents to contact if they needed help and advice.
55. It is understandably difficult for parents to deliver the therapies themselves. They cannot fully substitute for professional therapists. But I consider the Council took reasonable steps to try and maintain services as far as possible in the circumstances. The Council has shown that when it had a full duty to arrange the provision, before and after the ‘reasonable endeavours’ period, it accepted responsibility for missed therapy sessions and offered payments to make up for them. But I do not consider it would be appropriate to recommend payments for missing sessions for the lockdown period when services were not operating and the Council has shown reasonable endeavours.
56. I consider the Council was at fault, though, in the way it responded to Mrs X’s complaint in September 2020 about lack of therapies since March. It should not have advised her to raise her concerns with the therapy provision service directly. The Council was still responsible for provision during this period, although with a modified duty. It should have addressed her complaint itself. However this did not cause Mrs X a significant injustice as it did not result in her missing out on a remedy.

Back to top

Final decision

57. I have found there was fault but no injustice in the Council’s delay in dealing with the 2019 Annual Review process. I do not find fault in the Council’s handling of B’s support under his EHC Plan during the first COVID-19 lockdown period.

Back to top

Investigator's decision on behalf of the Ombudsman