Summary: We upheld Mr X’s complaint about the Council’s failure to secure special educational needs provision for his daughter, Y. The Council failed to obtain a risk assessment from Y’s school or show how it worked with Mr X and the school to consider different ways of delivering the provision. The Council will apologise and make a payment to Mr X and Y for the uncertainty it caused about what further provision might have been available.

The complaint

1. Mr X complains the Council failed to secure the provision in his daughter’s education, health and care plan in January and February 2021. He says the Council did not taken action to resume the provision or explain how any lost provision would be caught up. He says his daughter has been denied support at a key transition point between primary and secondary school. He would like the Council to ensure any lost provision in caught up and to recognise the time, distress and effort he has been put to in pursuing his complaint.

Back to top

The Ombudsman’s role and powers

2. 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)
3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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)

Back to top

How I considered this complaint

5. I have considered the complaint made by Mr X and the documents he provided.
6. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

Back to top

What I found

Background

Education, health and care plans

9. The Children and Families Act 2014 sets out how support will be provided to children with special educational needs and disabilities (SEND). The ‘Special education needs and disability code of practice’ (‘the Code’) gives more details about how councils, schools and others should carry out their duties.
10. 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.
11. Councils must make sure that arrangements named in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

Impact of COVID-19 pandemic

12. On 5 January 2021 the government announced schools in England would close until at least mid-February, in response to the COVID-19 pandemic. Schools remained open for vulnerable children, including those with EHC plans, and the children of critical workers. Schools remained closed until 8 March.
13. The government issued guidance to schools on 7 January. This said:

“Where a pupil has provision specified within their EHC plan, it remains the duty of the local authority and any health bodies to secure or arrange the delivery of this in the setting that the plan names. However, there may be times when it becomes very difficult to do so, for example, if they are self-isolating. In this situation, decisions on how provision can be delivered should be informed by relevant considerations including, for example, the types of services that the pupil can access remotely, for example, online teaching and remote sessions with different types of therapists. These decisions should be considered on a case by case basis, avoiding a one size fits all approach.”

14. The guidance said schools should follow advice about minimising the risk of transmission, including considering how to reduce contacts and maximise distancing between those in school wherever possible. Suggested measures included keeping children in consistent groups, avoiding contact between groups and staff maintaining distance from pupils and other staff as much as possible.
15. In a letter to children and their families published on 14 January the government said where it becomes more difficult to deliver provision in an EHC plan:

“education settings, local authorities and health partners (where applicable) should discuss with families to co-produce alternative arrangements for delivering provision. These decisions should be considered on a case-by-case basis which takes account of the needs of and circumstances specific to the child or young person, avoiding a one size fits all approach.”

What happened

16. Mr X’s daughter Y has an EHC plan which was amended in October 2020. Special educational provision included:
• An identified key adult who Y can meet with at least once a week for 30 minutes and build a positive and trusting relationship with to use as a safe base.
• A key person with relevant training in attachment who Y can meet with regularly (daily and reducing over time to a minimum of once a week) to celebrate successes and discuss any issues including how she feels about her family bereavement. In February 2021 this was updated to say the key person should check in with Y each day.
• A structured evidence-based programme which aims to build personal resilience, such as the Friends for Life programme.
• School-based activities, clubs and projects that can draw on Y’s strengths and provide her with a sense of belonging.

The plan also included social care provision for a referral for Y to access support following family bereavement. In February 2021 this was updated to say Y would access support through individual and family therapy as and when required.

17. At the time of the events complained about, Y was in year 6. Y continued to attend school during the period of closures in January and February 2021.
18. On 7 January, the Council issued a bulletin to all schools. It said it would be contacting schools in the week commencing 11 January to discuss provision for children with EHC plans. It said it would need to know whether children were attending school, if the provision in the EHC plan was being delivered, if the parent agreed with the provision offered and if conversations with parents had been documented.
19. The Council produced guidance for its officers carrying out discussions with schools about provision. This said if the child was attending school but the provision in their EHC plan was not being delivered, the school should complete a risk assessment and send it to the Council within five working days.
20. The risk assessment asked schools to record whether the provision in the plan was being delivered in school or was temporarily being delivered in a different way. It asked schools to outline the provision and whether there were parts of the plan not being delivered which would have a significant impact on the child. It asked schools to record the provision which was not being delivered and list what actions had been taken to secure it. Schools were required to note whether the child and their parents had been involved in the risk assessment.
21. On 12 January, Y’s school produced an ‘individual provision map’ showing how the provision in her plan would be delivered. This said Y would have access to an identified key person that she felt comfortable talking to and could meet regularly. The map highlighted some of Y’s provision may be unable to take place during the lockdown period and the school would try to provide it as much as possible. This included:
• Participation in a ‘Friends for Life’ programme to support Y’s social interactions and coping strategies.
• Encouraging Y to participate in clubs.
• Weekly 30-minute bereavement support sessions.

The map did not indicate whether Mr X or the Council had been consulted about alternative methods of delivery for this provision.

22. Y’s school emailed Mr X on 18 January to clarify what provision would be available for Y. It said:
• It would not be able to provide the Friends for Life programme due to a lack of children in school who also participated in the programme. The school said Y’s social interactions and coping strategies would continue to be supported by the adults in the classroom.
• It would not be able to encourage Y to participate in clubs as none were currently running in school.
• It would not be able to provide a weekly bereavement support session as the officer who delivered it was unable to due to COVID-19 restrictions. The school said Y would have access to trusted adults throughout the school day who would be able to talk through any feelings as they arose.
23. Mr X complained to the Council a week later. He said he had not been given an opportunity to discuss alternative methods of delivering the provision. He said other provision in the plan was yet to be secured.
24. The Council responded in mid-February. It quoted the Department for Education’s guidance regarding EHC provision during the lockdown period. It said it was sorry if Mr X did not feel Y’s school had co-produced her provision with him. The Council said it had spoken to Y’s school to confirm the information sent to Mr X remained current. It said it considered the school was delivering most of the provision specified in Y’s EHC plan and it accepted that some provision could not be delivered. This included provision of the Friends for Life programme, encouraging Y to join in clubs and bereavement support. It said social care had offered to revisit bereavement support if the trained member of staff was not available due to the COVID-19 pandemic and would work with Mr X and the school to seek further support from other therapeutic services. The Council said it considered best endeavours had been made to try to secure the provision.
25. Mr X engaged in further discussion with the school about Y’s provision in late February. The school said the Friends for Life intervention would take place as activities taken from the wider programme for one 20-minutes session each week with Y, an adult and a peer, with the small-group intervention restarting when schools reopened to all pupils on 8 March. The school said the other provision that was different from the EHC plan was the provision of a key adult to meet with for 30 minutes each week. The school said Y currently had a 10-minute check in with her key adult at the start of each day with any issues followed up through the day.
26. In early March Mr X raised a concern with the school that staff members previously assigned to help Y had been assigned to other duties. He was concerned other provision had been removed. The school advised Mr X about which staff were supporting Y on which days. In further correspondence the school said it had ensured staff working with Y had the appropriate training, experience and relationship with Y to enable them to work with her effectively and meet the needs in her EHC plan. It said staffing capacity had been fluid in some cases due to the COVID-19 pandemic and it could not discuss the circumstances of individual staff members. It said it has used its best endeavours to secure provision for Y.
27. In March, Mr X issued a letter before legal proceedings to the Council. In response, the Council said:
• Y received a 10-minute ‘emotional check-in’ each morning from key trusted adults trained to support her, with follow up through the day if she needed it.
• The Friends for Life programme was due to be completed by Easter after which Y would participate in a transition-based programme for 30 minutes each week, which would then transfer to her secondary school.
• It had commissioned a private therapist to deliver bereavement support with sessions beginning in February 2021.
• In line with government guidance, after-school clubs were not expected to fully reopen until the summer term, but Y had been able to access a range of school-based activities including art, cooking, design and sports.
28. Y’s school completed a further individual provision map in March. This showed the school had reinstated Y’s weekly meetings with a trusted adult to share her successes, issues and feelings, including about bereavement, as well as daily emotional ‘check ins’. The Friends for Life programme had restarted and she had completed eight out of ten sessions. Y would be encouraged to join clubs once they became available.
29. Y’s school met with Mr X in mid-March. Council officers attended as well as representatives from the school Y would be attending from September. Attendees discussed the provision that would be in place for Y in secondary school and some of the measures in place to support her transition.

Analysis

30. The Council had a process in place for checking what provision was in place for children in this period of restrictions and it communicated this effectively to schools. However, it did not follow the process in Y’s case. The Council has not evidenced it spoke to Y’s school or asked it to complete a risk assessment, despite it being clear by 12 January some of the provision in Y’s plan was not deliverable. This was fault.
31. Mr X complains Y’s school conflated parts of her provision in its provision maps. I cannot comment how the school drew up its provision maps for Y. I also cannot comment on decisions made by Y’s school about how to deploy its staff or manage pupil movements in this period. The internal organisation of schools is out of the Ombudsman’s jurisdiction.
32. Mr X made the Council aware he had not been involved in discussions about his daughter’s provision. The Council failed to show how it worked collaboratively with him and Y’s school to consider flexible and creative solutions for delivering support. This was also fault.
33. The Council did contact Y’s school to establish what provision was in place and took steps to secure other provision. I cannot say that Y would have received more provision in this period had the Council ensured the school completed a risk assessment or undertaken further work with Mr X and the school to consider alternative delivery methods. However, the Council’s failure to ensure a risk assessment was completed in line with its process has caused uncertainty for Mr X and Y about what other provision might have been available.

Back to top

Agreed action

34. Within one month of the final decision, the Council will apologise to Mr X and Y and pay £100 to recognise the uncertainty caused by its failure to ensure Y’s school completed a risk assessment in line with the Council’s process for children with EHC plans.

Back to top

Final decision

35. I have completed my investigation with a finding of fault for the reasons set out in this statement. Mr X and Y have been caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.

Back to top

Investigator's decision on behalf of the Ombudsman