Summary: Mrs B complained the Council did not secure the provision in her son’s educational, health and care plan. Mrs B says this negatively impacted her son’s academic progress and contributed to a decline in his well-being. We found fault with the Council because it did not secure provision in Mrs B’s son’s plan. The Council will secure the missed provision and make a financial payment to remedy the injustice to Mrs B and her son.

The complaint

1. Mrs B complained the Council did not secure the provision in her son’s, C’s, educational, health and care (EHC) plan; namely, occupational therapy, speech and language therapy, and social skills sessions. She also complained the Council did not review C’s EHC plan and its communication was poor.
2. Mrs B said this negatively impacted C’s academic progress and contributed to a decline in his well-being. Mrs B said she found this distressing and had to spend time chasing the Council.
3. I investigated from March 2020 to March 2021.

Back to top

The Ombudsman’s role and powers

4. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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)
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

How I considered this complaint

8. I considered:
• Mrs B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
9. Mrs B and the Council commented on a draft decision. I considered their comments before making my final decision.

Back to top

What I found

Legislation and Guidance

10. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. Part 3 of the Children and Families Act 2014, the Special Educational Needs and Disability Regulations 2014 and the SEND code of practice: 0 to 25 years give council’s information about its duties. Councils must make sure the provision in a child’s EHC plan is secured.
11. This complaint involves events that occurred during the COVID-19 pandemic. The Coronavirus Act 2020 allowed the Secretary of State to temporarily change existing legal requirements and issue guidance about provision of education for children with special educational needs and disabilities.
12. The Government issued guidance ‘Coronavirus (COVID-19): SEND risk assessment guidance’ on 19 April 2020 with advice about how to carry out the assessments. The risk assessment should have decided whether the pupil could have their needs met at home and be safer there, than attending an educational setting.
13. 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.
14. The Government issued guidance, education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19) on 30 April 2020. This said:

“the notice does not absolve local authorities …of their responsibilities under section 42: rather they must use their ‘reasonable endeavours’ to secure or arrange the provision. This means that local authorities and health bodies must consider for each child and young person with an EHC plan what they can reasonably provide in the circumstances during the notice period”.

15. The guidance 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.
16. In deciding what provision to make, councils had 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 suitable.
17. If it was not possible to arrange or secure full provision detailed in an EHC plan, councils had to consider the availability of those who should deliver what was needed and whether anything could be done differently to deliver provision.
18. The guidance provided 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.
19. The council should have kept a record of the provision it decided it must secure or arrange. It should have also:
• confirmed to the parents or young person what it decided to do and explained why the provision differed from that in the EHC plan
• kept under review whether the provision it was securing or arranging meant that it was still complying with the reasonable endeavours duty, recognising the needs of a child or young person may change over time as may the availability of key staff or provision

What happened

20. This chronology includes key events in this case and does not cover everything that happened.
21. C has a diagnosis of autism and ADHD. C attended School 1, a mainstream school with a specialist school for children with autism.
22. In April 2020, Mrs B contacted the Council about speech and language therapy for C. The Council said it intended to provide speech and language therapy remotely by phone or virtually during the national lockdown. At the end of April, the Council wrote to Mrs B advising C’s speech and language therapist was going on maternity leave and a locum would pick up C’s case. It told her to expect a phone call from the new therapist.
23. The Council issued an EHC plan for C in May 2020. This included:
• 6 sessions of at least 40 minutes each dedicated specifically to working direct with [C] with the speech and language team each term. Direct sessions should take place with the allocated teaching assistant (TA) present, so that the speech and language therapist can demonstrate and model strategies and activities to be carried out regularly in school. An allocated TA works at least 3 times per week on the S&LT programme at appropriate points during the day including in context in class
• Fortnightly group social skills sessions per term delivered by a speech and language therapist lasting approximately 45 minutes each.
• Weekly term time Occupational Therapy sessions with an OT, comprising 45-minute weekly sessions, with 15 minutes planning and documentation. These sessions may be implemented individually or within a small group of no more than 6 students. A classroom staff member should attend all sessions in order to reinforce occupational therapy strategies throughout occupational therapy sessions of 20 minutes per day at least 3 times per week.
24. In June 2020, the speech and language therapist phoned Mrs B to discuss C’s progress. Mrs B asked the therapist to work with C virtually. The therapist delivered one virtual session and gave Mrs B exercises she could do with C.
25. The speech and language therapist met C at School 1 once in September 2020 and once in October 2020 to review his targets.
26. Mrs B contacted the Council in October 2020. She said School 1 told her the occupational therapist and speech and language therapist had left their posts, and C would not receive this provision until it had recruited to these roles.
27. Mrs B chased the Council for an update about C’s provision in November 2020. The Council told Mrs B it was trying to find a solution.
28. The Council issued a final EHC plan for C in December 2020. The provision in paragraph 22 remained in place.
29. Mrs B complained to the Council in January 2021. She told the Council it had not secured the occupational therapy and speech and language provision in C’s EHC plan. She said there was no evidence the Council made reasonable endeavours to secure the provision between May 2020 and July 2020.
30. The Council commissioned an occupational therapy service in January 2021. The service delivered 24 sessions between January and March 2021. In March 2021, the school delivered three group social skills sessions. C attended all three sessions.
31. The Council responded to Mrs B’s complaint in February 2021. It apologised for its delay. It accepted it had not fulfilled its duties in ensuring the provision outlined in C’s plan were delivered. It explained, because of COVID-19, it had difficulty securing therapists. It told Mrs B it had secured a new occupational therapy provider.
32. Mrs B was dissatisfied with the Council’s response and asked for it to be considered at stage two of its complaint procedure.
33. The Council responded in March 2021 and upheld her complaint. It explained when COVID-19 restrictions started in March 2020 the occupational therapy provider, an NHS body, could not deliver the provision outlined in her son's EHC plan because of staff redeployment and capacity issues. It said it could not find an alternative provider. It advised it started a procurement process in September 2020, and a new provider would start to deliver occupational therapy in April 2021. It said the provider would make up the sessions C missed between March, and July 2020. It apologised that Mrs B had to chase the Council to get the issue resolved.

Analysis

34. The Council was responsible for the provision in C’s EHC plan from May 2020 when it issued his EHC plan. Between May 2020 and July 2020, the Council had to make reasonable endeavours to secure the provision in his plan. The Council explained there were staffing issues with both occupational therapy and speech and language therapy. The Council recruited a locum to cover C’s direct speech and language therapy provision and one virtual session was delivered. The Council made reasonable endeavours to secure this provision.
35. However, this was not the case for the social skills or occupational therapy sessions. Although I recognise it would have been difficult for the Council to secure the social skills sessions in C’s plan during the national lockdown, there is no evidence the Council considered making alternative arrangements. In addition, there was no evidence the Council considered how to provide occupational therapy when the NHS body advised it could not. In its stage two complaint response, the Council accepted did not fulfilled its duties in ensuring the provision outlined in C’s plan were delivered. Failure to make reasonable endeavours to secure the provision in C’s EHC plan was fault by the Council. This caused Mrs B and C uncertainty about what C would have received if the Council had made reasonable endeavours to secure this provision between May and July 2020.
36. The Council had to decide what provision in C’s EHC plan it could deliver during the period of reasonable endeavours from May to July 2020. The Council did not have a record of doing this, which was fault. In response to enquiries, the Council said the guidance did not say it needed to keep records. The guidance was clear, councils needed to keep records about the provision it would secure, and it had to write to parents with this information, see paragraph 18. Failure to tell Mrs B what provision C would receive caused further uncertainty.
37. From September 2020, the Council had a duty to ensure the provision in C’s EHC plan was delivered. Between September 2020 and March 2021, out of the provision listed in paragraph 22 the Council failed to deliver ten speech and language sessions, ten social skills sessions, and two occupational therapy sessions. This loss of provision caused C injustice. Mrs B said this negatively impacted her son’s academic progress and contributed to a decline in his well-being. In response to enquiries, the Council said it planned to make up this provision.
38. Mrs B chased the Council to try to get it to secure the provision in her son’s EHC plan. The Council delayed responding to her and did not fully address her concerns. The Council also delayed responding the Mrs B’s complaints, and again failed address all her concerns. These delays and partial responses were fault and caused Mrs B inconvenience and frustration.

Back to top

Agreed action

39. Within one month of the final decision, the Council will:
• Pay Mrs B £250 for the uncertainty about what C would have received if the Council had made reasonable endeavours to secure his provision between May and July 2020.
• Pay Mrs B £200 for the inconvenience and frustration caused by the Council’s delays.
40. The Council will ensure the following missed provision is delivered to C by the end of the academic year 2021/22:
• 2 occupational therapy sessions
• 10 speech and language sessions
• 10 group social skills sessions
41. The Council should provide the Ombudsman with evidence these actions have been completed.

Back to top

Final decision

42. I have completed my investigation and uphold Mrs B’s complaint. Mrs B and C were caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

Back to top

Investigator's decision on behalf of the Ombudsman