Summary: Ms X complained about lack of education and support for her son, C, under his Education, Health and Care Plan while he was out of school during the COVID-19 pandemic because of his vulnerability to risk of infection. We find that at first the Council took reasonable steps to ensure he received education. But it was at fault in failing to provide some therapy support. It also failed to consider its duties to provide alternative education for C while out of school for reasons other than illness, and instead approved a part-time ‘flexi-schooling’ agreement which made Ms X responsible for the costs of providing education at home. The Council has agreed a suitable remedy including reimbursing Ms X’s reasonable expenses in funding education herself, and a reminder to officers about the Council’s duties.

The complaint

1. Ms X complained that the Council:
1. failed to take all reasonable steps to ensure her son, T, received the special educational needs support set out in his Education, Health and Care Plan from May to July 2020;
2. failed to ensure he received the support from September 2020; and
3. delayed in restoring home to school transport when he went back to school part-time.
2. As a result she says her son's education suffered, she had to put a great deal of time, effort and money into providing education and support for him, and her own health declined.

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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. If we are satisfied with an organisation’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)
5. We cannot investigate complaints about what happens in schools, including complaints about the curriculum. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)

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How I considered this complaint

6. I discussed the complaint with Ms X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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.

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What I found

Education Health and Care Plans

8. 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. The EHC Plan is set out in sections. Section I states the name and/or type of placement the child will attend. Section F describes the provision to be made. Section J is for any personal budget agreed. We cannot direct changes to the sections about education, or name a different school. Only the Special Educational Needs and Disabilities (SEND) Tribunal can do this.
    
9. A personal budget is an amount of money the council identifies to deliver provision set out in an EHC Plan. It may provide the budget in the form of a direct payment to the parent. A young person or their parent has a right to ask for a personal budget during the preparation or review of an EHC Plan. If the Council refuses a direct payment it must give reasons in writing and offer a right of review.

10. Councils have a duty to ensure the special educational provision set out in an EHC Plan is arranged. (Children and Families Act 2014 section 42)

Impact of the COVID-19 pandemic

11. 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’.
12. In March 2020, all schools were ordered to close, retaining some staff to provide education for the children of key workers and some 'vulnerable' children. These included children with an EHC Plan. Schools did not have to allow all children with EHC plans to attend. Instead, the government asked councils to carry out a risk assessment with children who had an EHC Plan to determine whether their needs could be met at home and whether they would be safer there than attending an educational setting.
13. On 1 May 2020 the Secretary of State issued a notice under the Coronavirus Act 2020 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.
15. 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”.

16. The guidance notes 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.
17. Councils had to consider whether alternative arrangements for delivering the provision in an EHC Plan were possible if the full support in the Plan could not be provided. They needed to consider the local conditions and the individual circumstances of the child or young person, and tell the family the outcome.
18. The guidance provided examples of the types of alternative arrangements that may be made. This included moving to a part-time timetable, specialist teachers providing advice and support to parents, and widening the use of personal budgets or direct payments to allow parents to buy equipment to support home learning.

Guidance on people considered ‘Clinically Extremely Vulnerable’

19. In March 2020, the government issued guidance on ‘shielding’ and protecting people defined as being ‘clinically extremely vulnerable’ (CEV) to COVID-19. This outlined which health conditions identified somebody as extremely vulnerable and advised them to stay at home and avoid any face-to-face contact. The NHS wrote to all people it considered CEV with advice to stay at home for at least 12 weeks and not to have face-to-face contact with anyone outside their household.
20. In May 2020, the government updated its guidance on shielding to include “other people [who] have also been classed as clinically extremely vulnerable, based on clinical judgement and an assessment of their needs.”
21. At the end of July 2020, the government paused shielding. It updated the guidance to say clinically extremely vulnerable children should attend school in line with the wider reopening of schools due in September. In guidance issued to schools in August 2020, the government said, “some pupils no longer required to shield but who generally remain under the care of a specialist health professional may need to discuss their care with their health professional before returning to school in September… Where a pupil is unable to attend school because they are complying with clinical and/or public health advice, we expect schools to be able to immediately offer them access to remote education. Schools should monitor engagement with this activity.” This guidance remained in place through the autumn term 2020.
22. In January 2021, the government announced schools would close again and reintroduced shielding. While it reopened schools in March, it advised that children who were extremely vulnerable to COVID-19 should not attend.
23. Shielding ended in April 2021. Updated guidance said clinically extremely vulnerable children “should attend school unless they were one of the very small number of pupils under paediatric or other specialist care and have been advised by their GP or clinician not to attend.” Schools had to provide remote education for pupils who could not attend school because they were complying with government guidance. This guidance remained in place for the rest of the school year and into the next.

Home education for children with EHC Plans

24. Parents may choose to educate their child at home, including where the child has special educational needs. (Education Act 1996, section 7). In choosing to educate a child at home, the parents take on financial responsibility for any costs involved. This is known as ‘Elective Home Education’.
25. The position regarding responsibility for arranging and funding special educational provision at home is set out in section 61 of the Children and Family Act 2014, the SEN Code of Practice, and statutory guidance ‘Elective Home Education’.
• Where councils and parents agree home education is the right provision for the child, rather than a school placement, the EHC Plan will make this clear. It will include ‘Education Otherwise than at School’ (EOTAS) in section F. In these cases the council has a duty to arrange and fund the special educational provision set out in the Plan. Parents have a right of appeal against a decision not to include EOTAS in the special educational needs provision.
• This is not the same as parents deciding to educate the child at home. Where the council considers an education placement is suitable and the EHC Plan gives the name of a school or type of school, but the parents decide to educate at home, the council is not under a duty to arrange the special educational provision set out in the Plan. This applies as long as the council is satisfied the arrangements the parents have made to educate the child are suitable.
• In these cases the EHC Plan should set out the type of special educational provision that the council thinks the child needs but say the parents have made their own arrangements under section 7 of the Education Act 1996
• A council may help parents who choose to educate their child at home with the costs of special educational needs support, even though it has no duty to do so. It must “give reasonable consideration to any request for assistance - including considering whether it has any legal power to comply with the request and whether in the circumstances it ought to do so”. (Department for Education guidance ‘Elective Home Education’)
• The SEN Code of Practice says councils should fund the special educational needs of home-educated children where it is appropriate to do so.
26. Sometimes a child may be registered at a school but parents choose to arrange for them to receive part of their education at home. This is often known as ‘flexi-schooling’. The ‘Elective Home Education’ statutory guidance says the guidance applies as much to children on a flexi-school arrangement as to others fully educated at home.

Education for children out of school

27. Local authorities have a duty to arrange suitable education at school or elsewhere for pupils who are out of school “by reason of illness, exclusion from school or otherwise”, if they would not receive suitable education without such provision. (Education Act 1996, section 19)
28. ‘Otherwise’ is a broad category which covers circumstances other than illness or exclusion in which it is not reasonably possible for a child to take advantage of any existing suitable schooling.

What happened

29. Ms X’s son, C, has Down’s syndrome and severe learning disabilities. He also receives care from a respiratory consultant following an infection resulting in low oxygen levels. At the time of the events in this complaint C was attending a mainstream primary school, School 1. He has an EHC Plan.
30. At the time of the first COVID-19 lockdown in March 2020 C’s EHC Plan provided for extensive support, including:
• 1:1 support at all times
• a personalised curriculum
• a Speech and Language Therapy (SaLT) programme delivered by trained school staff under the guidance of a SaLT therapist, who was to visit C to provide direct therapy to him once every half term
• access to a language package on a tablet
• a daily Occupational Therapy (OT) programme
• adult help to participate in PE lessons
• support, resources and strategies provided by the Council’s Learning Support Service.
31. Following a re-assessment of C’s EHC needs, started in January 2020 at Ms X’s request, the Council issued an amended final EHC Plan on 6 May 2020. The Plan provided for similar support as the previous one, but with more specific time periods for the interventions by suitably trained staff. It included use of a laptop and tablet with specialist software, and training and half-termly monitoring visits by a SaLT therapist.
32. Between the start of the lockdown and early April School 1 contacted all parents of vulnerable pupils to offer a school place. Ms X declined as she said C would be at risk. She says his GP had advised he should stay at home until the pandemic was over or there was a vaccine available and C had been vaccinated. Ms X confirmed her wishes subsequently in conversations with the School and emails to the Council.
33. School 1 sent home packs of work, lists of useful resources including websites an, suggested timetables. It made regular telephone calls to parents of pupils with EHCPs not attending school including Ms X. The school says the packs were tailored to each pupil’s needs and were hand-delivered. Ms X disagrees that they were tailored or suitable for C.
34. During April Ms X was in correspondence with the Council about funding to support the education she was providing for C at home. She wanted the Council to reimburse the cost of materials she had bought. She asked if she could have a personal budget. The Council’s response was it could consider requests for personal budgets and direct payment during the EHC needs assessment process or an annual review. However in the current circumstances of the pandemic it was considering how it could provide support flexibly and creatively to meet children’s needs. Ms X sent in details of costs incurred and the Council confirmed it was dealing with her request and would respond.
35. Ms X says the Council agreed to cover around £300 of her expenses. She says she spend considerably more than this.
36. On 21 May School 1 carried out a ‘reasonable endeavours’ assessment. It completed a form ‘Provision of EHCP Outcomes during Covid 19 Pandemic’ and set a review date of 15 June. The form said “Packs of activities are delivered direct to the doorstep once every two weeks. Class teacher speaks to the parent and child weekly. (Where possible as [C] has limited verbal interaction)”. It said the School had provided a laptop for use at home and a supply of materials such as stationery. The School sent a copy to the Council and confirmed it had shared it with the parents.
37. At the end of June School 1 bought a tablet and keyboard for C at Ms X’s request and brought it to her home. School 1 says the delay was due to finding the appropriate equipment.
38. There was a general return to school in September 2020, but with advice to children under specialist medical care. Ms X sent an email to School 1 to say she would like to keep C away from school for at least 3 weeks because of concerns about COVID-19. She reported C was making good progress with his education.
39. Before the start of the summer holidays and into September, Ms X, School 1 and the SEN Team Manager from the Council were in discussion about how C might be able to return to school, initially on a part-time timetable. The Council says there was ‘an initial informal flexi-schooling arrangement agreed at [Ms X’s] request’. The exact nature and status of the arrangement is a matter of dispute between Ms X and the Council. I refer to this dispute in the details of Ms X’s complaint and in the Analysis section later in this statement.
40. Ms X, School 1 and the Council agree, and the evidence confirms, that during the autumn term C participated in some lessons virtually online provided by School 1, and attended in person for PE. Ms X also received tailored work packs and some software from the School for Ms X to work on with C. Ms X also obtained her own materials. There is evidence that during this term Ms X wrote to School 1 several times to express her thanks for the work it was sending and her appreciation of the support it was providing. She said C was making good progress at home.
41. In early November 2020 Ms X received a letter from the NHS confirming C was considered to be at risk of severe illness if he caught COVID-19. It had added his name to the CEV list. Ms X reported this to School 1 and the Council.
42. By the start of the spring term in January 2021, there was another lockdown and the government had reintroduced shielding. School 1 contacted parents of all vulnerable pupils and offered a place in school. Ms X declined because of C’s CEV status.
43. Between January and March 2021 the flexible schooling arrangement continued. Ms X was in frequent contact with the School, at times praising it for the work provided and at others saying she did not consider it suitable as it was not sufficiently tailored to C’s needs. In January the Council’s advisory services and the class teacher considered the quality of the work provided and decided it was appropriate. The class teacher checked work before it was sent out.
44. Schools re-opened to most pupils again in March. C did not return to school then as Ms X provided a letter from C’s paediatric consultant saying because of his respiratory condition it would not be safe for him to mix with other pupils indoors. The letter referred to C having been shielding during the pandemic and thriving educationally with the home schooling. The consultant said she hoped C could return to school full time once had received his vaccination. In the meantime she would support a plan for him to remain at home but with some social interaction with friends outdoors.
45. For the rest of the spring and summer terms C started attending school, at first for one afternoon a week and then gradually increasing. School 1 continued to send work home for him and he continued to access some virtual lessons. Again Ms X gave mixed responses to the School about the work it was providing.
46. In late May 2021 Ms X made a formal complaint to the Council about what she said was its failure to make the provision set out in C’s EHC Plan. She said C had been off school since March 2020 because of the COVID-19 pandemic and had been medically signed off school until it was safe for him to return. Part of her complaint was about the quality of the work School 1 was sending home, although she also referred positively to some of the support she had received. Regarding the Council’s actions she complained that:
• C had not received any specialist support, in particular since August 2020 when the full duty to deliver the provision in the EHC Plan resumed,
• There had been no contact from the SaLT therapist from March 2020 to February 2021,
• The Council told her she could not apply for a Personal Budget,
• She had asked to discuss a dual placement (part-time at school and part-time EOTAS at home) but the Council had said this was not possible,
• The Council had withdrawn the school transport it had previously provided,
• It had withdrawn top-up funding for C.
47. Despite this she said C’s progress had accelerated while she had been supporting him at home and providing SaLT privately. She asked the Council to consider a dual placement and said she did not want to have to pay for tutors privately.
48. The complaint went through the two stages of the Council’s complaints procedure issuing the final response in mid-July 2021. In the course of this correspondence the Council said:
• It recognised the difficulties of making the full education and SEN provision during the pandemic and apologised that C had not received this in full. It offered Ms X £200 for her time and trouble in pursuing her complaint and said she could put this towards C’s education.
• Under the ‘flexi-schooling guidance’ the Council was responsible only for the provision delivered at school. Any education she provided at home was under ‘Elective Home Education’ and so she was responsible for that element, with support and resources provided by School 1.
• It had considered her request for EOTAS but decided the most suitable placement was full-time education at School 1 and so it did not approve her request for a dual placement.
• It had not provided transport while C was not attending school but it had made arrangements to re-instate it once he returned to school.
• It had withdrawn top-up funding for C as the School did not need as much under the flexi-schooling arrangement. It would resume the funding once C returned to school full-time.
49. Ms X’s response was that she had never had a flexi-schooling agreement in place with the School. She said she had discussed this with her SEN Caseworker and School 1 early on but had decided against it. She emphasised that she was not Electively Home Educating. Rather she said C had been forced to stay at home because he was clinically vulnerable and would also find it difficult to manage with the COVID-19 restrictions in place in school. She wanted the Council to provide full-time alternative education to C as a child medically signed off school.
50. Ms X also said she had received no formal decision refusing a dual placement. Regarding transport she said she had been driving C to and from school every day since early June 2021. She wanted a plan in place for suitable education for C from September 2021.
51. In September 2021 after discussion with the Council and School 1, Ms X and the School signed a formal flexi-schooling agreement, with the Council’s approval. Ms X says the Council drew up the agreement. The agreement said:
• C would attend school two afternoons a week and the rest of the time would receive education at home.
• The parents, not the School, would be ‘wholly responsible’ for C’s education when he was not attending school and would ensure he received a suitable education in line with his EHC Plan.
• The School would provide a 1:1 teacher to plan and deliver lessons during the school sessions.
• Ms X would be responsible for a Personal Budget approved by the Council.
• The School would monitor the EHC Plan outcomes and share the results with the parents.
• There would be a formal review of the agreement at the end of each full term unless either side wanted an earlier review.
52. This arrangement continued until November, with C having a tutor at home in the mornings. In November the School agreed to increase the school sessions to four afternoons a week. Ms X says she is happy with the education C has received since September 2021.
53. In the meantime, following an Annual Review of C’s EHC Plan, the Council issued an amended final EHC Plan, which Ms X appealed against. The Plan names a specialist secondary placement from September 2022. Ms X says C will be going to school full-time in September now he is fully vaccinated.

Speech and Language Therapy

54. The last recorded SaLT contact before the national lockdown in March 2020 was in early March. There was a discussion and review of targets, followed by a telephone call with Ms X to discuss the report and a school visit to observe C.
55. In May Ms X called the Council with concerns about lack of direct SaLT and about the work the school was sending her. The SaLT therapist became involved, emailing the School about the resources it was providing.
56. The Council says there was then a gap in activity “due to [C] being home schooled and mum not wishing direct face to face contact”.
57. The next activity was in January 2021 when the SaLT therapist had a discussion with Ms X about progress and the need for clearer resources. Ms X received further tasks and resources to use at home. From then on there were actions each month, with virtual meetings, home and school visits, assessments and reports.

Analysis – was there fault causing injustice?

Education and support up to end of July 2020

58. Councils and schools had to react quickly to the emergency situation when the pandemic started and the government announced school closures towards the end of March 2020. There is evidence that the Council provided schools with advice and tools needed to carry out risk assessments to decide whether vulnerable children should stay at home or go into school. School 1 contacted Ms X and at her own request agreed C should remain at home. I have not seen evidence that at this stage Ms X had received a letter defining C as CEV or provided medical evidence ‘signing him off’ on medical grounds. But all concerned agreed it would not be in C’s interests to attend school.
59. After government guidance about the ‘reasonable endeavours’ duty issued at the beginning of May, the Council also provided forms for schools to record how they were providing education and support to pupils with EHC Plans. School 1 completed the form for C around three weeks later. It returned it to the Council explaining the support it was providing. There is no reference on the form to provision of SaLT and how support might be provided differently. I deal with this issue in a later section. Other than that my view is the Council took appropriate steps to ensure school was making ‘reasonable endeavours’ to put the provision in place. The Council has accepted this may not have resulted in C receiving the full provision under his EHC Plan.

Education and support from September 2020

60. When schools re-opened generally in September 2020 there is evidence from email correspondence that Ms X was keen for C to return to school when it was safe for him to do so. But she still had concerns about him being clinically vulnerable. She came to an agreement with School 1 about provision, partly at home and partly at school with the School providing work to do at home. School 1 says the work was tailored to C’s needs and ability and reflected the desired outcomes in his EHC Plan. Most of time the Ms X expressed satisfaction with the work provided. When Ms X raised concerns about the materials, the Council took suitable action by considering the work and decided it was appropriate. It is not for the Ombudsman to comment on the quality of work provided.
61. For rest of year although at times Ms X was saying she was not happy with the she was receiving from the School, she confirmed that with the combination of education at home and at school C was thriving and making good progress. Again the Ombudsman has no power to investigate matters relating to the content of the curriculum. But I have seen no evidence of fault by the Council causing any injustice to C in terms of loss of education.
62. From September 2021 Ms X says she was happy with the education and support C received.
63. However I have concerns about the description of both the formal and informal agreements as ‘flexi-schooling’. I deal with this issue in the section on funding later in this statement.

Speech and Language Therapy

64. In response to our enquiries the Council says SaLT could not be delivered because of restrictions on home visiting by professionals. However I have not seen any evidence that the Council considered any alternative means of providing the support during the ‘reasonable endeavours’ period. In my view the failure to consider the matter or share a plan with Ms X was fault, and meant C missed the opportunity to have SaLT support during this period.
65. Nor have I seen any evidence that the Council considered how SaLT provision could be started again in September 2020 once the full duty to deliver the support had returned. There was no SaLT support provided until January 2021. C was due to have direct sessions once every half term. The rest of the provision in the EHC Plan was support to staff. I accept there were difficulties in providing the support as C was not in school and Ms X did not want in person face to face contact because of the COVID-19 risk. However the Council should have considered providing the direct sessions virtually and restored the support to staff at School 1. I consider the failure to do so was fault and meant C lost the benefit of SaLT support for a term, except for any sessions Ms X paid for privately.

Funding

66. In April 2020 Ms X was asking the Council to reimburse expenses paid on providing materials for C to help teach him at home. The Council rightly said it could consider this as part of a flexible response to education during the pandemic. It did so and made a payment but I understand Ms X submitted details of other expenses. If the Council has not considered all the claims Ms X submitted I would consider this to be fault. Ms X says the SEN Caseworker asked her to submit further expenses in November 2020, but when she did the Council refused as she had not asked for a Personal Budget in advance.
67. I also consider the Council was at fault in how it considered providing financial support for C’s education from September 2020 for the following reasons.
68. Although the School and the Council refer to a ‘flexi-schooling’ agreement starting in September 2020, Ms X is adamant did not agree to this as part of Elective Home Education. Email correspondence with her SEN Caseworker in September shows she was considering the options. Ms X said School 1 was telling her it could not authorise C’s continued long-term absence. But Ms X was concerned about the COVID-19 risks and about how C would cope with social distancing and other restrictions at school. She said School 1 gave her two options: flexi-schooling or home education. Ms X was clear she was looking for a temporary arrangement where C could attend school part-time until he could go back full-time. She said she “did briefly consider home education” but decided against it as she needed to work and have a break, and C needed contact with other children. She asked whether the School could provide a teacher for him at home and the Council said it would look into it.
69. Flexi-schooling would be part of EHE meaning Ms X having financial responsibility for education during periods at home, including special educational needs support. If that was case, it should be reflected in the EHC Plan. Yet there was no change to this effect. Also the full EHE guidance would apply and the Council should have checked if it was satisfied with the education Ms X was providing. If it was part-time EHE the Council would also have the power to provide funding for the education provided at home and should have given ‘reasonable consideration’ to Ms X’s request for financial help.
70. Also, from September 2020 if not C was not officially shielding but was following medical advice, government guidance was to offer education remotely. This would also apply from early November 2020 when C was listed as CEV. School 1 was providing some remote learning, but the Council should not have expected Ms X to bear any of the cost.
71. My main concern, however, is the lack of any evidence that the Council considered or applied its duty to provide alternative education for C while he was not attending school full-time. Even before C got CEV status, or even if he was not unable to attend school because of illness, the Council should have considered whether it had a duty to provide alternative education for other reasons. The Council was aware of the reasons Ms X did not wish C to return to school full-time once schools re-opened generally in September 2020. He was particularly vulnerable to the risks of COVID-19 because of his condition and would have difficulty understanding the restrictions in place. The medical evidence Ms X later provided shows her concerns were legitimate and supported by C’s consultant.
72. Based on the evidence I have seen I therefore consider the Council was at fault in failing to consider and provide education under section 19 of the Education Act 1996 and instead supporting an arrangement which made Ms X responsible for funding part of C’s education and SEN support, when she made it clear she did not wish to do so.
73. The option of having part of the education delivered as ‘EOTAS’ and part in school would have been a matter to consider as part of any review of the EHC Plan. Any decision on the matter would then be appealable to Tribunal and so outside the Ombudsman’s remit.
74. In my view basing the education provided on a ‘flexi-schooling’ agreement rather than on the alternative provision duty has caused Ms X an injustice. She has had to bear financial responsibility for part of C’s education which she should not have had to do. I have not seen information about her costs or the Personal Budget the agreement calls for. She has also experienced anxiety and distress.

Home to school transport

75. Transport stopped in March 2020 and Ms X says she expected it to start again when C started going back to school part-time after Easter 2021. She started taking C to and from school during the summer term. C was entitled to free home to school transport before the pandemic, and so he would still be entitled to it once he returned to school part-time. The Council has provided information about the travel expenses it has reimbursed. Ms X believes there may still be some outstanding expenses. As C was legally entitled to free school transport the Council should cover the full reasonable costs if it has not already done so.

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Agreed action

76. To remedy the injustice caused to Ms X and C the Council has agreed to take the following action within one month of the decision on this complaint. These steps are in addition to the £200 payment the Council has already offered for Ms X’s time and trouble.
• Apologise to Ms X for the faults found.
• Pay her £300 to recognise the anxiety and distress she experienced.
• Pay her £500 for the loss of opportunity to have SaLT support from May to July 2020 and the loss of actual support from September to December 2020 or reimburse the costs of private SaLT up to the level of support that would have been provided under the EHC Plan, whichever is the greater.
• Consider any outstanding expenses Ms X submitted under the flexible arrangements during the ‘reasonable endeavours’ period. Give her a decision with reasons and pay any expenses agreed.
• From September 2020 to the end of the ‘flexi-schooling’ agreement invite Ms X to submit evidence of expenses for education provided at home under these formal and informal agreements. Reimburse all reasonable expenses. Provide a written explanation of expenses agreed.
• Reimburse any outstanding costs of transport from when Ms X started taking C to school again until the free transport started.
• Remind relevant officers of the need to consider the duty to provide alternative education to a child who is out of school for reasons other than exclusion or illness. The Ombudsman’s recent Focus Report ‘Out of school, out of sight? Ensuring children out of school get a good education’ sets out learning points on this issue based on complaints we have investigated.

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Final decision

77. I have found that the Council was at fault in how it dealt with education and support for C during the COVID-19 pandemic. I am satisfied with the action the Council has agreed to take to remedy the injustice to Ms X and C and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman