Summary: Mr X and Ms Y complained the Council failed to make ‘reasonable endeavours’ to provide for their son, Z’s, special educational needs during the COVID-19 pandemic. The Council failed to properly consider and make ‘reasonable endeavours’ to arrange Z’s special education when there was an alternative provider available. It also failed to review Z’s personal budget to meet increased costs and to meet other costs Mr X and Ms Y incurred due to fault for which it was responsible. It agreed to apologise, pay these costs and review similar cases.

The complaint

1. Mr X and Ms Y complained the Council failed to make ‘reasonable endeavours’ to provide for their son, Z’s, special educational needs from June 2020. They also said the Council failed to properly review Z’s personal budget, provide school transport, pay some annual review costs and properly investigate their complaint.
2. As a result, they said Z missed some of his provision, they were caused avoidable stress and pressure supporting Z’s learning and had to pay extra costs themselves. They want the Council to apologise, refund the costs they incurred, improve its policies and check if other families were similarly affected.

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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 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)
4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
6. 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”.
7. 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.
8. 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

9. I considered:
• the information Mr X and Ms Y provided, and discussed the complaint with Mr X;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law, guidance and Council policy.
10. Mr X, Ms Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
11. 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

12. 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.
13. Councils are responsible for making 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. (Children and Families Act 2014, section 42)
14. Between 1 May and 31 July 2020, the Government made changes to councils’ duties to arrange the provision in EHC plans. Between those dates, councils instead had to make ‘reasonable endeavours’ to arrange the provision specified in EHC plans. This was referred to as ‘the modified s42 duty’.
15. Guidance on the duty to make ‘reasonable endeavours’ at the time said that councils and schools should weigh up the risks to children with EHC plans of continuing to attend school against missing some of the provision set out in their EHC plan.
16. Where councils could not arrange the provision set out in an EHC plan, the guidance said it should consider:
• what provision the EHC plan describes is needed;
• the availability of those who usually deliver the provision;
• what could be done to deliver any provision differently; and
• different types of provision, locations or providers.
17. Councils must also review EHC plans at least every 12 months. Where a child or young person attends school, Councils can require the school to carry out the review on its behalf. (Children and Families Act 2014, section 44; The Special Educational Needs and Disability Regulations 2014, regulation 20)

School transport

18. Councils must make ‘suitable travel arrangements’ for ‘eligible children’ to attend their ‘qualifying school’. Eligible children include those who live more than three miles from their qualifying school. For children with an EHC plan which names one school, that school is their qualifying school. (Education Act 1996, section 508B)
19. The Council’s school transport policy says that it will provide transport for eligible children by:
• school bus services;
• local bus services; or
• contracted vehicles (taxis).
20. In exceptional circumstances, the Council says it might pay a milage allowance for parents to use their own vehicles and that it decides each case on its own merits.
21. During the COVID-19 pandemic, the Council said it agreed with some schools that they would tell the Council, weekly, in advance, what transport their pupils needed. The Council would then arrange the necessary transport.

What happened

Z’s needs and EHC plan

22. Z has special educational needs and an EHC plan which says:
• Z has autism with severe language delay, very little social interest in others, high levels of repetitive behaviours and mild sensory differences;
• Z’s behaviour can be difficult and must be managed through consistently applied consequences and rewards. The approach used with Z included an Applied Behaviours Analysis (ABA) programme from a specialist provider (‘Provider A’);
• Z does not learn without adult instruction in a structured environment, so does not learn or progress during school holidays;
• Z’s behaviour regresses during short breaks away from learning; and
• Z needs structured, evidence-based autism specific education from specialist teaching staff, in a setting which can provide a curriculum tailored to his needs.
23. To meet these needs, Z’s EHC plan said he should receive:
• 38 weeks a year education in a named special school (‘School B’);
• 7 weeks extra ABA tuition during school holidays, from Provider A. It funds this through a direct payment sufficient to pay for 20 hours a week 1:1 tutor support, 21 hours of supervision from Provider A and other support with the ABA programme.
24. Before the COVID-19 pandemic, Z was attending School B full time and received his ABA tuition from Provider A and other tutors arranged by Mr X and Ms Y during school holidays.

Education between March to July 2020

25. Due to the COVID-19 pandemic, School B closed to pupils in mid-March 2020. It provided some home learning activities which, due to his needs, Z’s parents needed to intensively support him to engage with.
26. In mid-May 2020, Provider A told Mr X and Ms Y it would be re-opening from June 2020. It would then be able to provide 15 hours a week of 1:1 tuition for Z until the end of the school year.
27. Mr X and Ms Y agreed with Z’s social worker to use some of his social care budget towards the cost of this provision. They also asked the Council’s special educational need (SEN) team to cover the rest of the cost as a reasonable alternative to School B, which could not offer Z a place at the time. They explained the difficulties of educating Z at home due to his behaviour and the importance of resuming his education as soon as possible to prevent this getting worse.
28. School B reviewed its risk assessment of Z shortly after Mr X and Ms Y’s request to the SEN team, but it did not offer Z a place. Mr X and Ms Y arranged for Z to attend Provider A from early June, covering the cost themselves.
29. In mid-June, the Council refused to cover the costs of the placement at Provider A. It told Mr X and Ms Y that School B had made ‘reasonable endeavours’ to provide Z with what it could and that he might be offered a place to return to School B.
30. Mr X and Ms Y asked the Council to reconsider its decision. They pointed out the Government guidance to the Council and told it Z had not been offered a place at School B, so could not return to school immediately. They told the Council that School B had indicated it would only be able to offer a part-time place at some point before the school holidays.
31. In early July, Z attended an assessment at School B and was offered a part-time place until the end of term. Mr X and Ms Y accepted this, and Z returned to School B part-time the following day.

School holidays from summer 2020

32. Mr X and Ms Y also asked the Council to cover the anticipated extra costs of Z’s ABA tuition during the school holidays. They explained that, because of the COVID-19 restrictions, they would not be able to arrange their usual tutors and would have to use only tutors from Provider A instead. Since this cost more, they would need extra funding to ensure Z received the full 20 hours a week in his EHC plan.
33. In mid-June, the Council said it would not decide about extra funding until it became clear what the extra costs would be. However, Mr X and Ms Y said the Council never reviewed its decision and did not cover the extra costs for the summer 2020, Christmas 2020 or Easter 2021 holidays. As a result, they said they had to cover additional costs themselves and Z went without some of the tuition he should have had.

School transport

34. Z was entitled to free transport to School B. This was usually provided by a taxi arranged by the Council.
35. Mr X and Ms Y said the Council provided no transport for Z to attend School B for the first two visits in July. Mr X told the Council about this and asked it to arrange transport, or pay a mileage allowance, for the following week. However, Mr X said no taxi arrived for the next journey and the Council failed to tell them it had arranged a taxi for the fourth journey. As a result, the taxi arrived too early and at the wrong address, so they needed to take Z to school themselves. The Council refused to pay a mileage allowance for those journeys.
36. The Council said School B was responsible for telling it what transport Z needed and that it provided a taxi when this was requested.

Annual review costs

37. The Council asked School B to arrange an overdue review of Z’s EHC plan in June 2020. School B asked Provider A to attend the review. Mr X and Ms Y said the review was arranged at very short notice and they were not told in advance that Provider A had been invited.
38. Provider A attended the meeting and charged the costs of attending the meeting to Mr X and Ms Y. Mr X and Ms Y asked the Council to pay the costs of Provider A’s attendance, as they said the Council had done in previous years, but the Council refused.

Mr X’s and Ms Y’s complaint to the Council

39. Mr X and Ms Y complained to the Council that it refused to:
• fund Z’s placement at Provider A in June and July 2020;
• pay the extra costs of Z’s school holiday provision;
• pay a mileage allowance for the July dates it did not provide transport; and
• pay for the costs of Provider A attending the annual review.
40. The Council did not uphold the complaint, so Mr X and Ms Y complained to the Ombudsman about these issues, and the way the Council investigated their complaint. They said the Council’s investigation failed to:
• properly consider the modified s42 duty and government guidance;
• seek evidence to resolve a dispute about when Z could have returned to School B; and
• find out what education School B provided during June 2020 and how much of this Z could engage with.

My findings

Education between March to July 2020

41. The Council has not provided any evidence that it conducted the risk assessment it should have done or that it considered how it could deliver as much of Z’s EHC plan as reasonably possible. This was fault. Although School B had a duty to provide as much of Z’s normal provision as it could, the Council had a separate duty to make ‘reasonable endeavours’ to deliver the provision in Z’s EHC plan.
42. The evidence shows it is unlikely the Council could have arranged the provision in Z’s EHC plan between March and June 2020, since no providers who could provide the intensive support he needed were available. Because of the circumstances at the time, I do not consider the Council’s failure to arrange other provision during that time was fault.
43. From June 2020, face-to-face provision was available from Provider A, which Z accessed. Z then attended School B again, part-time, for the last three weeks of the summer term.
44. The proposal Mr X and Ms Y made to the Council was detailed and they explained to the Council how this arrangement would be reasonable and meet much of Z’s needs. There is no evidence the Council properly considered:
• Mr X and Ms Y’s proposal;
• whether arranging for Z to attend Provider A would have been a ‘reasonable endeavour’ to deliver what was in his EHC plan; or
• whether other, alternative arrangements would have been possible.
45. The Council said School B was providing home learning during the lockdown. However, it has not provided any evidence to show that this met Z’s needs as stated in his EHC plan or that Z could have attended school sooner. Even then, the evidence shows School B was only able to offer Z a part-time place until the end of the summer term. On the balance of probabilities, I am satisfied Z could not have returned to School B before July 2020 and that School B could only deliver part of Z’s EHC plan after he returned.
46. The Council failed to properly consider what ‘reasonable endeavours’ it could make to arrange as much of the provision in Z’s EHC plan as it could. It also failed to consider the Government guidance at the time. Given the detail of the proposals, that Provider A already worked with Z and the needs outlined in his EHC plan, I am satisfied Provider A could have met most of Z’s needs during June and July 2020. Since the Council failed to consider this, or alternatives, it should pay the extra costs Mr X and Ms Y incurred for the extra provision from Provider A during that time.

School holidays from summer 2020

47. For the first few weeks of the summer holiday, the Council had a duty to make ‘reasonable endeavours’ to deliver Z’s out-of-school provision. From 1 August, it once again had an absolute duty to secure the provision in his EHC plan. So, it had to secure all of Z’s out-of-school provision for the Christmas 2020 and Easter 2021 holidays.
48. Z’s EHC plan says the Council will provide a personal budget sufficient to fund 20 hours of 1:1 tuition for 7 weeks a year. Mr X and Ms Y said they have given the Council evidence of their extra costs. However, the Council has not adjusted Z’s personal budget to account for the increased costs. This was fault, which caused Z to miss some provision during that time and Ms Y incurred extra costs for the tuition Z did receive.
49. Mr X and Ms Y said Z received the following hours of 1:1 tuition:
• Summer 2020 – 57 hours, out of 100 hours expected;
• Christmas 2020 – 16.5 hours, out of 20 hours expected; and
• Easter 2021 – 16 hours, out of 20 hours expected.
50. So, Z missed 50.5 hours of 1:1 tuition, around one third of that specified in his EHC plan and the equivalent of around seven hours a week for seven weeks. Because of the amount of support Z already receives, it is unlikely providing extra tuition to make up for these missed hours would be possible. Given Z’s needs and that he got two thirds of the provision he should have, the Council should pay Mr X and Ms Y £600 for that missed provision.

School transport

51. The Council had a duty to provide transport for Z to attend School B. The evidence shows it did not provide suitable transport for the first four days when Z returned to School B in July 2020. That was fault.
52. Although the Council said it was School B’s responsibility to arrange the transport, those arrangements did not work in Z’s case. Since the Council failed to provide transport for Z, it should pay Mr X and Ms Y a transport allowance for the first four days Z attended school in July.

Annual review costs

53. School B arranged the June 2020 review meeting on behalf of the Council and invited Provider A to attend without telling Mr X and Ms Y first. This was fault since this gave Mr X and Ms Y no say in Provider A’s attendance or the costs of that meeting.
54. The Council said Mr X and Ms Y could meet the costs of Provider A’s attendance from Z’s direct payments. However, there is no element in the direct payment for attendance at review meetings. The direct payments are for Z’s out-of-school tuition. Therefore, the Council should meet the £437.50 costs incurred by School B’s actions when it was acting on behalf of the Council.

Complaint handling

55. The evidence from the Council shows it failed to properly investigate Mr X and Ms Y’s complaint. This included:
• failing to properly consider the amended s42 duty and guidance provided by the Government;
• relying on the Council’s own account of events, even when this was disputed, without seeking further evidence or explaining why it preferred the Council’s account;
• failing to properly find out what provision from Z’s EHC plan School B could provide during June and July 2020; and
• refusing to review its first decision not to increase Z’s personal budget to meet the out-of-school provision included in Z’s EHC plan during the COVID-19 restrictions.
56. This was a missed opportunity to properly investigate and resolve Mr X and Ms Y’s complaint, which meant they needed to complain to the Ombudsman and caused them avoidable time and trouble.

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Agreed action

57. Within one month of my final decision, the Council will:
• apologise to Mr X and Ms Y for the failures identified above;
• pay Ms Y the £1,942.46 she had to pay in extra costs to Provider A between June 2020 and Easter 2021;
• pay Mr X and Ms Y £600 for Z’s future educational benefit to recognise the out-of-school provision he missed;
• pay Mr X and Ms Y a travel allowance at the correct rate for the 8 journeys they made to take Z to and from School B in early July; and
• pay Mr X and Ms Y £200 each to recognise the avoidable time and trouble caused by them having to complain.
58. Within six months of my final decision, the Council will:
• Identify and review other cases of parents who asked for specific alternative SEN provision or increases in direct payments for the period between 1 May and 31 July 2020. It should review whether it correctly made ‘reasonable endeavours’ to arrange provision in those cases and whether it correctly applied the amended s42 duty and accompanying guidance.

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Final decision

59. I have completed my investigation. The Council failed to properly consider and make ‘reasonable endeavours’ to arrange Z’s special education when there was an alternative provider available. It also failed to review Z’s personal budget to meet increased costs and to meet other costs Mr X and Ms Y incurred due to fault for which it was responsible. It agreed to apologise, pay these costs and review similar cases.

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Investigator's decision on behalf of the Ombudsman