Summary: Ms X complained the Council failed to provide the provision set out in her son’s Education, Health and Care plan, and it failed to address all of her complaint. Ms X said this had a disproportionate impact on her son’s physical wellbeing due to the nature of his conditions. She said it also caused unnecessary distress and uncertainty. We find the Council at fault, and this fault caused Ms X and her son injustice. The Council has agreed to apologise to Ms X and make a payment to her to reflect the injustice caused.

The complaint

1. The complainant, who I refer to here as Ms X, complained the Council failed to provide the provision set out in her son’s Education, Health and Care plan while he was waiting to start residential school. She also complained the Council failed to address all of her complaint.
2. Ms X said this went on for a long time and had a disproportionate impact on her son’s education and physical wellbeing, due to the nature of his conditions. She said it also caused unnecessary distress, inconvenience, uncertainty, and cost her time and trouble.

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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. 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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How I considered this complaint

6. I considered the information and documents provided by Ms X and the Council. I spoke to Ms X about her complaint. Ms X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
7. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Education, Health and Care (EHC) plans

8. Under the Children and Families Act 2014, when an Education, Health and Care needs assessment is completed by a council and it shows a need for special educational provision, the local authority must prepare and maintain an Education, Health and Care (EHC) plan.
9. Section F of an EHC plan sets out the special educational provision required to meet a child’s special educational needs. Councils must ensure children with an EHC plan get the support they need. Councils have a legal duty to provide the special educational provision specified in the EHC plan. Councils cannot delegate this duty to a school or other body. If a school cannot make provision outlined in the plan, either for financial or expertise reasons, the council must provide it.

Education, Health and Care (EHC) plans and COVID-19

10. When England entered a national lockdown on 23 March 2020 because of COVID-19, schools were closed to the vast majority of children. They remained open only to vulnerable children and children of specified key workers.
11. Children with EHC plans were included in the Government’s definition of potentially vulnerable children. Councils were advised to carry out risk assessments, to decide whether a child with an EHC plan would be safer in a school setting. The aim of the measure was to ensure the child’s safety, rather than to ensure they received their normal educational entitlements. The Government published guidance around conducting risk assessments, to establish whether a child could be safely supported at home.
12. From 1 May 2020, the Government issued new guidance on a change of law. This meant councils were only required to make ‘reasonable endeavours’ to arrange special educational provision. This lasted until 31 July 2020, after which the absolute duty for councils to arrange special educational provision was reinstated.
13. The guidance explains that ‘reasonable endeavours’ will be different and vary according to the needs and circumstances of each child. The guidance provided a framework to help decision-makers decide what type of provision could reasonably be arranged.
14. The ‘reasonable endeavours’ duty afforded councils a very broad interpretation about what ‘reasonable’ looks like. That said, our expectation is that councils properly considered the circumstances of each child, any representations from parents/carers, and made a decision in line with the guidance, which it communicated in a clear and timely manner.

Personal budgets

15. Once a child has an Education, Health and Care (EHC) plan, a council must make sure it provides the provision set out in the EHC plan. Normally, a council will do this by providing funding to the child’s school. However, councils can consider making a payment to the parent so they can organise the provision themselves. This is called a direct payment.
16. In order for a parent to request a direct payment, a council must first identify a personal budget. A personal budget is the notional amount of money that would be needed to cover the cost of making the special educational provision set out in the EHC plan.

What happened

17. Ms X’s son, D, has special educational needs and physical health needs. He has an Education, Health and Care (EHC) plan. In February 2020, a tribunal decided that D should be placed in a residential school. The tribunal ordered that School A was named in D’s EHC plan.
18. D was meant to start at School A in March 2020. This was delayed due to COVID-19.
19. In March, the Council issued D’s final EHC plan which reflected the tribunal’s decision, and named School A. This EHC plan also set out the therapeutic provision D would get. This provision included:
• 45 minutes a week (minimum) of one-to-one speech and language therapy;
• Weekly sessions with a psychologist;
• 45 minutes per week (minimum) of occupational therapy; and,
• 20 to 60 minutes per day of one-to-one physiotherapy.
20. Also in March, England went into a national lockdown due to COVID-19.
21. In September, D started at School A. D was not happy there. In November, Ms X removed D from School A. The Council consulted School B, to see if they had a place available for D. School B was Ms X’s preference. D was meant to start at School B in January 2021.
22. From 5 January to 8 March 2021, England was again in a national lockdown.
23. In March, School B told Ms X that D could not start there until possibly September (2021).
24. In May, Ms X asked the Council for a personal budget for D while he waited to start at School B. Ms X said D needed the therapies set out in his EHC plan. She told the Council how the lack of therapies was affecting D’s health.
25. The Council said it could hold a review and discuss a personal budget, or it could commission a private occupational therapist, but this would take time.
26. In September, Ms X asked the Council why D had not received any of the therapeutic provision set out in his EHC plan.
27. In October, School B told Ms X that D could start there in mid-November.
28. Also in October, Ms X complained to the Council. She made several points of complaint, including that D had not been provided with the therapies set out in his EHC plan. Ms X told the Council D was suffering due to a lack of therapies.
29. In November, D started at School B. A few days later, the Council responded to Ms X’s complaint. It addressed some parts of Ms X’s complaint. It accepted fault causing injustice. The Council made a payment to Ms X to reflect the injustice caused, including her time and trouble.
30. Ms X then brought her complaint to the Ombudsman.

Analysis

Provisions in the Education, Health and Care plan

31. The Council says the continuous changes to D’s start date at School B were “difficult and frustrating”. It says this caused the delay in D accessing the full provision set out in his EHC plan.
32. The Council says it was not able to provide the therapeutic provisions outside the school setting. It says D’s EHC plan states these therapies (listed above) were to be delivered within a school setting as part of a multidisciplinary school provision. It says it was not feasible for the Council to provide these therapies on an individual basis for D. The Council said, in its experience, it is not possible to commission for these sorts of therapies in a private home as there are no available resources.
33. As I have said above, Councils have a legal duty to provide the special educational provision specified in an EHC plan. Councils cannot delegate this duty to a school or other body. If a school cannot make provision outlined in the plan, either for financial or expertise reasons, a council must provide it.
34. We understand the Council’s position, that it expected D’s therapies would be provided within a residential school setting. However, there were six months* when D should have been in school, getting the therapies set out in his EHC plan, but he was not. So, D missed out on support and therapies he would have received, if he had been at school.
35. [*In calculating that six months, I have taken account of the following from August 2020 (I will discuss the period before August 2020 later): what would have been school holidays (summer 2020 and 2021, and December 2020); that D started at School A in September 2020; that D left School A in November 2020; that the Council found an alternative placement at School B relatively quickly with a start date in January 2021; and the lockdown from January 2021 to March 2021. After 8 March 2021, the Council had a duty to secure the provision in D’s EHC plan until he started at School B in mid-November 2021. This equates to six months.]
36. D was not at school for these six months and did not receive the therapies set out in his EHC plan. The Council did not provide these therapies while D was waiting to start school. The Council therefore failed in its duty to provide the provision set out in D’s EHC plan. This is fault. The Council accepts that D missed therapy provision.
37. This fault caused D injustice because he missed out on vital therapies. Delays in some of the listed therapies are particularly impactful. The longer D went without therapies, the worse the outcome could be for him long-term (I have seen evidence which supports this).
38. Regarding provision before August 2020, D was meant to start at School A in March 2020. He could not because of COVID-19. The country was in a lockdown until 1 May 2020. Councils were not expected to provide special educational provision during this time (set out above). However, from 1 May to 31 July, councils were required to make ‘reasonable endeavours’ to arrange special educational provision (set out above).
39. I have seen no evidence that the Council made, or attempted to make, ‘reasonable endeavours’ to arrange therapeutic provision for D as set out in his EHC plan. This is fault.
40. Without anything in writing to say what the Council believed were its ‘best endeavours’ to provide D’s EHC plan provision, I cannot say what provision the Council could or would have made for D. Also, D would not have been in the equivalent of full-time provision in any event.
41. Therefore, the injustice caused by the fault in this three-month period is uncertainty.
42. Regarding a personal budget, the Council says it did not fully explore this option for D’s therapies. It says a personal budget was raised as a consideration but it did not take it any further due to questions about the length of time before D started at School B. Therefore, the Council could not know what the personal budget should be.
43. The Council accepts that a personal budget may have allowed Ms X to feel more in control of D’s support. It says it is sorry it did not follow this up.

Complaint handling

44. The Council accepts that it did not respond to the part of Ms X’s complaint about lack of therapeutic provision, as set out in D’s EHC plan. It says this was an oversight.
45. This is fault. I find this fault caused Ms X unnecessary distress and uncertainty.

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Agreed action

46. Within four weeks of this decision, the Council has agreed to apologise to Ms X in writing for:
• the unnecessary distress and uncertainty caused by failing to respond to the part of her complaint about lack of therapeutic provision;
• the uncertainty caused by a lack of ‘reasonable endeavours’ to arrange provision for D as set out in his EHC plan between 1 May and 31 July 2020; and,
• the impact caused by the loss of special provision (therapies) as set out in D’s EHC plan.
47. Within four weeks of this decision, the Council has agreed to make a payment to Ms X of £2300. This is made up as follows:
• £200 to reflect the uncertainty caused by a lack of ‘reasonable endeavours’ to arrange provision for D as set out in his EHC plan between 1 May and 31 July 2020
• £2100 to reflect the impact of missed provision as set out in D’s EHC plan (I explain this further below)
48. The Ombudsman’s published guidance on remedies outlines a payment between £200 and £600 per month for the impact of a loss of special educational provision (the injustice caused by the fault). In arriving at the below figure, I have taken into consideration that D received educational/academic provision from a tutor, his level of special needs, and the stage of D’s education. I have also considered the disproportionate impact that the loss of these therapeutic provisions may have caused D (described above).
49. Having taken those factors into account, I consider that a payment of £350 per month is appropriate. Above, I have set out my calculations regarding the length of time D was not provided with therapies as set out in his EHC plan between 8 March 2021 and mid-November 2021, when he started at School B. This totalled six months. So, £350 per month multiplied by six months is £2100. This is to be used for the benefit of D’s health (through therapies).
50. In arriving at these amounts, I have considered the Ombudsman’s published guidance on remedies.
51. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

52. I have completed my investigation. I uphold Ms X’s complaint because I find fault causing injustice. The Council has agreed to take action to remedy the injustice caused by the faults.

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Investigator's decision on behalf of the Ombudsman