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East Sussex County Council (21 002 898)

Category : Education > COVID-19

Decision : Upheld

Decision date : 06 Apr 2022

The Ombudsman's final decision:

Summary: We upheld a complaint from Miss X on behalf of her son Mr Y about the Council’s handling of his special educational needs provision. The Council failed to secure some of the therapeutic support in Mr Y’s plan. The Council agreed to apologise to Mr Y, make a payment to recognise his lost provision, and review its systems for checking provision is in place.

The complaint

  1. Miss X complains on behalf of her son Mr Y that the Council failed to secure the therapy in his education, health and care plan between January 2020 and March 2021. She says the loss of this provision has affected his well-being and he has lost trust in professionals having experienced such a lengthy period without support. Miss X would like the Council to compensate Mr Y for his lost provision.

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The Ombudsman’s role and powers

  1. 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)
  2. 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 in this decision statement. The courts have said that where someone has used their right of appeal, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
  3. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  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)

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How I considered this complaint

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

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What I found

Law and guidance

Education, health and care plans

  1. The Children and Families Act 2014 sets out how support will be provided to children and young people up to the age of 25 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.
  2. Most children and young people will have their SEND needs met within early years settings, schools or colleges without any need for involvement from a council. Children with more complex needs might instead need an education, health and care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. Councils are responsible for ensuring effective coordination of the assessment and development of an EHC plan. The Ombudsman cannot direct changes to an EHC plan; only the SEND tribunal can do this.
  3. Councils have a duty to secure the special educational provision in an EHC plan for the child or young person. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
  4. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement.

Impact of the COVID-19 pandemic

  1. This complaint involves events that occurred during the COVID-19 pandemic. The government introduced new and frequently updated rules and guidance during this time. 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.

Risk assessments

  1. 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 asked councils 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.
  2. When the government issued this guidance councils 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 had chosen to keep the child at home and agreed temporarily that the child would not be accessing education at the school.

Providing the support in an EHC Plan

  1. In an open letter to councils and education providers issued on 24 March 2020 the Department for Education advised it would be introducing temporary emergency legislation changing councils’ duties about 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”.
  2. On 1 May 2020 the Secretary of State issued a notice under the Coronavirus Act to give more flexibility to councils 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.
  3. 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.
  4. 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”.
  5. 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.
  6. In deciding what provision can and cannot be made the council 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 appropriate.
  7. If it was not possible to arrange or secure full provision detailed in an EHC plan, factors to be considered included the availability of those who should deliver what is needed and whether anything could be done differently to deliver provision.
  8. 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; and widening the use of personal budgets or direct payments to enable purchase of equipment to support home learning.
  9. 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.

What happened

  1. Mr Y is an adult and has an EHC plan. Mr Y’s plan sets out the difficulties he has when communicating with unfamiliar people. It says professionals need to build trust with him before implementing any of his provision. Mr Y lives with his mother, Miss X.
  2. An independent autism practitioner began working with Mr Y in February 2018 and the Council paid for this to be delivered from May 2018 to the end of July 2019. The Council issued an amended EHC plan for Mr Y in March 2019 which said this provision would end at the end of the academic year in 2019. Miss X appealed to the SEND tribunal.
  3. In January 2020, the tribunal directed the Council to include one hour a week with an Autistic Spectrum Disorder (ASD) specific therapist in Mr Y’s plan. The Council issued an amended final plan in February which included this provision.
  4. In response to my enquiries, the Council said its interim provision team usually monitors provision for young people receiving education other than at school. However, in this case, the team was not told the tribunal had ordered the Council to provide ASD therapy for Mr Y and so it was not included in its monitoring.
  5. In October, the Council wrote to the autism practitioner seeking a report from her for Mr Y’s next annual review. She told the Council she had not worked with him for a year. The Council wrote to Miss X. It said it had become aware the existing autism practitioner was no longer working with Mr Y. It apologised that it had not contacted the practitioner after the SEND tribunal in January to confirm her services were still required. The Council said it had assumed the practitioner would continue to work with Mr Y and would invoice the Council directly.
  6. The Council tried to commission the same autism practitioner to work with Mr Y but she did not have any availability. The Council asked Miss X if she or Mr Y had any specific criteria for an alternative practitioner. It said it did not receive a response.
  7. In November, an annual review meeting took place. According to the notes, Mr Y asked not to access any ASD therapy, as he was more comfortable and less anxious while learning at home. The Council wrote to Miss X and Mr Y confirming it would amend the EHC plan and asking them to confirm they wanted the therapeutic provision removed from the plan. Miss X said Mr Y did not ask for the therapies to be removed from the plan, but said that he did not want to access them at the time as learning at home was meeting some of his needs, mitigating the need for some of his therapy.
  8. The Council issued an amended final plan for Mr Y at the end of March 2021.
  9. Miss X complained to the Council in April 2021. She asked it to compensate Mr Y for his lost provision. In response, the Council acknowledged the provision had not been put in place but said it had apologised. It said neither Miss X nor Mr Y had made it aware the provision was not in place between February and October 2020. The Council said it made reasonable attempts to rectify the situation once it became aware. It had offered to provide two hours a week of ASD therapy with an alternative practitioner to make up for the lost sessions, but Mr Y said he did not want any more therapy. It declined to compensate Mr Y for the lost provision.
  10. Miss X was unhappy with the Council’s response. She said it had a legal duty to secure the provision while neither she nor Mr Y had a duty to chase this up. Miss X explained the personal difficulties the family had experienced in 2020 which had prevented her from pursuing the missing provision but said she had made Mr Y’s caseworker at the Council aware in May 2020 that it was not in place. Miss X said she did acknowledge the Council’s offer of an alternative practitioner, but Mr Y would have found it difficult to engage with a new person having built a relationship with his previous practitioner. She complained to the Ombudsman.

Analysis

  1. The Council accepts the ASD therapy was not put in place following the tribunal’s decision in January 2020. The Council acknowledges it failed to share the amended final plan with the team responsible for monitoring Mr Y’s provision. We would expect the Council to have systems in place to check provision is in place when an amended final plan is issued. It was not Miss X or Mr Y’s responsibility to notify the Council provision was not in place. The Council had a duty to secure the provision and not doing so is fault. As a result, Mr Y missed out on provision he was entitled to.
  2. The Council had further opportunities to check the provision was in place in response to COVID-19. To comply with the guidance issued in April 2020, the Council should have considered what provision it could reasonably provide from Mr Y’s EHC plan. It should have sought Mr Y’s views, confirmed what provision would be put in place, and kept this under review. There is no evidence it did so and this was fault. This creates uncertainty about whether this and other provision could have been available to Mr Y during the first national lockdown if the Council had made reasonable endeavours to secure it.
  3. The Council’s duty to secure the provision returned from September 2020 until the EHC plan was amended in March 2021. The Council did attempt to secure an alternative practitioner and make up some of the provision once it realised the provision was not in place. However, Mr Y decided he did not wish to access the provision at this time. In my view, there is uncertainty about whether Mr Y would have made the same decision if the provision had been in place throughout 2020 as it should have been.

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Agreed action

  1. Within one month of the final decision, to remedy the injustice to Mr Y, the Council will apologise for failing to secure the provision and pay him £950. This payment takes account of the periods the Council had a duty to secure the provision and did not do so, as well as the periods where there is uncertainty about what provision could have been in place but for the Council’s faults.
  2. Within one month of the final decision, the Council will also review its systems for checking provision is in place when amended final plans are issued.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman

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