Complaining when the LA is not using reasonable endeavours to secure special educational provision in an EHC during the COVID-19 pandemic: COVID-19 Model letter A

How do I know what should usually be provided and who by?

This should be ‘specified’ in Section F of the EHC plan.

In practice, most of the provision will usually be made by the school or college. However in law, the local authority (“LA”) is responsible for arranging provision set out in an EHC plan.

Does the LA still have to “arrange” this help?

Until 1 May 2020 the LA was legally required to “secure the special educational provision” specified in Section F of an EHC plan under section 42 of the Children and Families Act 2014.

Notices made under the Coronavirus Act 2020 have temporarily amended this absolute duty to a ‘reasonable endeavours’ duty.  This means that during the specified period (currently 1 May - 31 July 2020) LAs need to do whatever they reasonably can to put provision in place, but if they cannot do so they would not necessarily be breaching the law. 

If there could be a risk to the child or young person’s health, wellbeing or safety if they do not receive a particular provision or intervention, raise this with your school and LA without delay.  The guidance on supporting children and young people with SEND may help your discussion.

The guidance on EHC needs assessments and plans during the COVID-19 crisis explains that LAs and health commissioning bodies “must consider for each child and young person with an EHC plan what they can reasonably provide in the circumstances”. This includes considering the individual child/young person’s needs, as well as their and their parents’ views, and keeping arrangements for provision under review.

The guidance explains how delivery of provision might work in practice. For example, if the child is attending school:

  • Due to staffing issues there may need to be alterations to the frequency and timing of the delivery of provision in school, for example, moving to a part-time timetable.
  • If the school is closed, there may need to be a temporary placement in another school or a local hub.

If the child is staying at home and it’s not possible for direct therapy to be delivered in the home setting, the guidance suggests alternatives such as:

  • A speech and language therapist delivering sessions via video link.
  • The parent and child travelling to receive the therapy at suitable premises, where this can be done in ways consistent with guidance on reducing the transmission of coronavirus (COVID-19).
  • An occupational therapist or a physiotherapist video linking to a child’s home and modelling exercises that the parents could do with their child.

You could also consider requesting a personal budget and seeking direct payments for special educational provision.

Is the child or young person still entitled to attend the school or college named in their EHC plan?

This will depend on whether they would be as safe or safer attending school rather staying home. If they have ‘complex needs’, LAs and schools have been advised to carry out a risk assessment to determine this.

There is more information on the gradual re-opening of schools and safety measures to be taken on our page on school closures and SEND provision.

When should I complain?

Given the impending summer holidays, you should complain as soon as you become aware that the child or young person is not getting the special educational provision specified in Section F of the EHC plan or, where this is not currently possible, the LA has not taken reasonable steps to secure appropriate alternative provision.

Should I speak to the school or college about this?

Yes, definitely. Speak to your child’s class or subject teacher, the SENCO and the head teacher or principal about your worries as well as writing to complain to the LA.

The school or college may be aware of ways that your child or young person could be supported which you could suggest the LA explore or put in place.

Even if your child or young person is not currently attending school or college, you should be able to contact a member of school staff.

What if the school or college offers to write on my behalf?

It is OK for the school or college to write as well, but the most important thing is to write yourself. The only one who can take legal action in order to ensure that the LA complies with its duty to do what it reasonably can to ensure the child or young person receives the provision specified in their EHC plan is a parent or the young person themselves. The head teacher or principal cannot do this, even if he or she wants to!

Who should I write to?

Write to the top person at the LA, usually the Director of Children’s Services. You can find this information and contact details for this person by clicking here. Your LA’s Local Offer should also clearly set out how a complaint can be made. This can be found on your LA’s website.

Remember to keep a copy of any letter or email you send.

The Local Government and Social Care Ombudsman can look into complaints against LAs where no adequate response is provided. Having suspended accepting new complaints due to the impact of COVID-19, the Ombudsman will accept new complaints from Monday 29 June. If complaining to the Ombudsman is not appropriate – for example, because the matter is serious and urgent – you may need to consider judicial review.

If you need further advice, you can book an appointment to speak with us.