Summary: Miss X’s complained about the Council’s failure to secure provision in her son’s education, health and care plan during the period March 2020 to March 2021. We have found that the Council failed to show how it considered the provision in place for the young person was suitable, or whether further provision could have been secured. This caused uncertainty for Miss X and her son about whether more could have been done to support him. We have recommended that the Council apologise and make a payment to recognise the impact of this uncertainty.

The complaint

1. Miss X complained that the Council failed to secure provision in her son’s education, health and care plan during the period March 2020 to March 2021. She says this affected her son’s well-being and academic progress. She says he was socially isolated and became anxious about school. She would like the Council to arrange support for her son to catch up on what he has missed and ensure he has suitable provision if he needs to self-isolate in the future.

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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)

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How I considered this complaint

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

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What I found

Law and guidance

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. 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 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.
11. 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)
12. The Ombudsman expects councils to have systems in place to check that provision in an EHC plan has been secured and is being provided to a child or young person. (‘Not going to plan? Education, Health and Care Plans two years on’)

Impact of the COVID-19 pandemic

13. 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

14. 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.
15. 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 in the first national lockdown

16. 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”.
17. 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.
18. 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.
19. 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”.
20. 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.
21. In deciding what provision could and could not 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.
22. 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.
23. 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.
24. The council had to keep a record of the provision it decided it must secure or arrange. It should then have:
• confirmed to the parents or young person what it had decided to do and explain why the provision differed from what was set out in the EHC plan.
• kept decisions under review, with an early review if necessary if the child or young person’s needs changed.

Providing the support in an EHC plan from September 2020

25. The government issued guidance to schools in September 2020 which said it expected schools to have the capacity to offer immediate remote education in the event pupils needed to self-isolate. The government expected schools to recognise some pupils with SEND may not be able to access remote education without adult support.
26. Updated guidance issued in response to the second national lockdown 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.”

Providing the support in an EHC plan in the third national lockdown

27. 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 were closed to most children until 8 March.
28. The government issued guidance to schools on 7 January which mirrored that set out in paragraph 26.

What happened

29. Miss X’s son Y has an EHC plan. His plan includes programmes to develop his speech and language skills and activities to develop his motor skills. He should receive 32.5 hours of support from a teaching assistant each week. At the time of the events complained about, Y was in years 9 and 10 at school.
30. Y is clinically vulnerable and when schools closed in response to the first COVID-19 national lockdown, he remained at home. Y’s school completed a risk assessment. In response to the question of what reasonable endeavours had been made for his EHC provision, the school said online learning resources were available for Y and he engaged with these. It said his parents were continuing to support him at home. Miss X says Y did not receive any of the provision in his plan in this period.
31. Y’s school completed an updated risk assessment in June, following a discussion with Miss X in May. Miss X told the school it was difficult for Y to work at home and he was struggling to complete the work independently. She said he needed more tailored work. The school recorded there was a risk Y would be unable to access the work set by his teachers, so a keyworker would collate individualised work for him and send it home. Both this and the risk assessment completed in April were sent to the Council.
32. Schools reopened to all pupils in September. When Y had to self-isolate in October because he had been in contact with someone who had COVID-19, his school provided a home learning plan with twice daily support from a teaching assistant. Miss X contacted the Council to advise Y was not receiving the provision in his plan. The Council told Miss X to speak to the school’s special educational needs coordinator (SENCO).
33. Miss X and Y’s school exchanged several emails, copying in the Council, through October and November. Miss X asked the school to provide more virtual learning for Y. The school increased Y’s virtual learning to four hours a day.
34. In November, Miss X emailed the Council directly with her concerns Y’s school was not providing the one-to-one support he needed. Y’s SEND officer told Miss X he would speak to the SENCO and seek advice from the lead SEND officer. There is no record of these discussions taking place or response being provided to Miss X. Y returned to school in December.
35. When schools closed in January 2021, Miss X emailed Y’s school, copying in Council officers. She queried the arrangements for Y to access online learning which had changed from what the school had offered previously. She was concerned about Y’s ability to communicate with his teachers during lessons. Y’s school said it would be happy for the Council to quality assure the provision it was offering. There is no record the Council did so.
36. Miss X also said Y was receiving less than the four hours of lessons the school had proposed. She advised the twice weekly social sessions agreed by the school should be provided in addition to this. Miss X and the school exchanged several emails, copying in the Council, seeking to resolve the situation.
37. In late February, Y’s school contacted the Council to ask for support and advice about delivering Y’s provision. There is no record of a response.
38. Miss X complained to the Council in March 2021. She said Y was entitled to 32.5 hours of support, but the Council had not made reasonable endeavours to secure this during the first period of school closures. She said since September 2020, he had only received sporadic EHC provision and since January 2021 he should have received four hours of support a day with two 15- to 20-minute social sessions each week. Miss X said this had not been delivered and her son was at a disadvantage as a result. She asked the Council to confirm the steps it would take to secure his provision and what it would implement to address the disadvantage.
39. The Council responded at the end of March. It said it had met with the headteacher and SENCO from Y's school to discuss his provision. It set out the actions the school had taken and did not uphold Miss X’s complaint.
40. Miss X was dissatisfied and asked for her complaint to be considered at the next stage of the Council’s complaints procedure. In response, the Council repeated the findings from its first response and did not uphold her complaint. Miss X complained to the Ombudsman.

Analysis

41. The Council was aware from June 2020 Miss X had concerns about the provision in place for Y while he could not attend school. There is no record of how the Council decided whether reasonable endeavours were being made to deliver Y’s EHC plan. I cannot say further provision would have been secured for Y. However, there is uncertainty for him and for Miss X about whether the Council could have done more to support him had it reviewed what was being delivered during the lockdown.
42. While the reasonable endeavours period ended in July 2020, guidance issued from September 2020 onwards was clear it may not be possible to secure all the provision in an EHC plan when children were self-isolating or schools were closed due to COVID-19. Given the difficulties presented by the pandemic and the limitations of remote learning, it is not possible for me to say Y should have received all the provision in his plan in this period.
43. However, there is no evidence the Council considered how provision in Y’s EHC plan could be delivered in this period, despite Miss X persistently sharing her concerns that Y was not receiving what he was entitled to. The Council did not take up the school’s offer to quality assure the provision in place for Y. This could have offered Miss X some reassurance that what was in place was suitable for him in the circumstances. This lack of action by the Council was fault, and again creates uncertainty for Miss X and Y about whether the Council could have put further support in place.
44. Y’s SEND officer told Miss X in October he would speak to the school’s SENCO and seek advice from a more senior officer but there is no record he did so, or that any feedback was given to Miss X. In its response to our enquiries, the Council said it made telephone calls about the case, but it did not keep written record the discussions which took place. This is fault, and was a missed opportunity for the Council to assist in resolving Miss X’s concerns about Y’s provision.
45. In its response to Miss X’s complaint, the Council did not respond to the concerns she raised about a lack of social provision for Y during the period he was accessing learning from home. This was not provision included in his EHC plan but additional provision offered by the school to maintain Y’s contact with his peers. As it was not in his plan, the Council did not have a duty to secure it. Therefore, I do not find fault with the Council for not taking steps to secure this provision. I cannot investigate the actions of the school.

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Agreed action

46. Within one month of the final decision, to remedy the injustice caused, the Council should:
• apologise to Miss X and Y for the uncertainty caused by the faults identified.
• pay £500 to recognise the impact of this uncertainty on Y.
• remind staff to keep written records of telephone calls and discussions about individual cases.

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Final decision

47. Miss X and Y were caused an injustice by the actions of the Council and I have recommended it take action to remedy the injustice. I have now completed this investigation.

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Investigator's decision on behalf of the Ombudsman