The Ombudsman's final decision:
Summary: Mrs X complained the Council failed to properly provide for Y’s education when she told it she no longer wanted to educate him at home. The Council was at fault for delays in reviewing Y’s Education, Health and Care plan and for failing to provide alternative education to Y while he was out of school. This meant Y was without suitable education for a year and caused Mrs X unnecessary stress, time and trouble. We recommend the Council makes a payment to Mrs X and to Y and makes service improvements to prevent the fault occurring again.
- Mrs X complained the Council:
- failed to provide alternative provision for Y once she decided she no longer wanted to home educate him;
- delayed in finding him a school place;
- did not review Y’s Education, Health and Care plan when it should have;
- did not offer her funding while Y was out of school; and
- did not provide the provision in Y’s Education, Health and Care plan.
What I have investigated
- I have investigated complaints (a) to (d). The final section of this statement contains my reason for not investigating the rest of the complaint.
The Ombudsman’s role and powers
- 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)
- 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)
- Mrs X complained about the Council's ongoing failure to provide Y with a school place. I have considered the Council's actions from January 2019, when Mrs X told the Council she no longer wanted to home educate to February 2020 when the Council issued its final complaint response.
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).
How I considered this complaint
- all the information Mrs X provided and discussed the complaint with her;
- the Council’s comments about the complaint and the supporting documents it provided; and
- relevant law and guidance and the Ombudsman's guidance on remedies.
What I found
Relevant law and guidance
Education, Health and Care plans
- The responsibilities of councils towards children and young people with special educational needs (SEN) are set out in the Children and Families Act 2014 and associated Regulations and statutory guidance, the SEND Code of Practice 2015 (The Code).
- Under the Children and Families Act 2014, councils have a duty to identify and assess the special educational needs of children in their area. To do this, councils carry out Education, Health and Care assessments. In an assessment, councils will ask for information from sources including the child and their family, the school, medical professionals and social care providers. It will consider what provision is needed to meet the child’s special needs, including what type of school or institution the child should attend.
- If the assessment finds the child has a need for special educational provision, the council must prepare an Education, Health and Care (EHC) plan.
- Councils must review an EHC plan within 12 months from the date the plan was made (meaning the date the plan was finalised). They must then review the plan every 12 months after this as a minimum. If the council wants to amend the plan, it must send the parent an amendment notice within four weeks of the review. The notice should detail the proposed changes and give the parent 15 days to comment. The council must issue the new draft within eight weeks of the date of the amendment notice.
- The purpose of a review is to ensure plans remain relevant to the needs of the child. Councils should carry out re-assessments if the child’s needs change significantly. Re-assessments follow the same format as the initial assessment for an EHC plan and are therefore more thorough and time consuming than a review.
- The SEND Tribunal is a tribunal that considers special educational needs and disability discrimination. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))
- Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's plan, or the fact that no school or other provider is named. Parents can only appeal once the Council issues the final EHC plan.
Elective Home Education
- All parents have the right to choose to educate their child at home rather than school. This right is irrespective of whether the child has special educational needs. Government guidance states that parents who choose to educate their children at home must be prepared to assume full financial responsibility.
- Choosing to electively home educate means the council no longer has a legal duty to secure any special educational provision specified in a child’s EHC plan, because the parents are deemed to be making their own suitable alternative arrangements.
- The Education Act 1996 (section 19) says that education authorities (councils) must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise.
- The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs. It should be on a full-time basis unless, in the interests of the child, part-time education is considered to be more suitable. Government guidance states that one-to-one tuition can count as full-time because it is more intensive.
- There is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion. Local authorities should arrange provision as soon as possible.
- The Code says councils should consider whether they should review a child’s EHC plan where the child is no longer attending the institution named on their plan.
Alternative provision and EHC plan
- In October 2018, the Council issued Y’s EHC plan. The plan noted Mrs X was electively home educating Y.
- In January 2019, Mrs X contacted the Council and told it she no longer wanted to home school Y. The Council offered to contact three mainstream schools to see if they would accept Y. Mrs X said one was unsuitable, she had contacted another and the last was full. The Council discussed amending Y’s EHC plan to name a mainstream school and said Mrs X should choose her preferred one. The Council did not amend the plan or carry out an early review or re-assessment. There is no evidence it contacted the mainstream schools to find out if they could accept Y.
- Y was diagnosed with autism in early May. The Council contacted a special school (School A) later that month. It did not review Y’s EHC plan based on the new diagnosis.
- At the end of June, School A responded to say it could not offer the provision set out in Y’s EHC plan. It said the support Y needed was greater and different to the kind it could provide. It also said Y would not have a peer group in the school.
- A member of staff told Mrs X School A would not accept Y in early July and said they would discuss ‘next steps’ with their manger. The Council spoke to Mrs X and contacted School B, another special school. The Council has not provided evidence of when it contacted School B, but a SEND panel held in late July noted the Council should chase the school for a response.
- In early August 2019, Mrs X contacted the Council to ask what other schools could accept Y and also asked if any home tuition services were available. The Council did not respond. She continued to chase it in late August and September. The Council responded in late September to say it had not had a response from School B yet.
- Y’s EHC plan was due for review in October 2019. Mrs X contacted the Council in late October as it had not arranged the review.
- The Council responded in early November to say Y was on its annual review list.
- The Council chased School B for a response in early December. The School replied to say Y was 76th on the waiting list for a place.
- The Council held its annual review in mid-December. It issued the draft amended EHC plan in early January. The plan still recorded Y as being electively home educated.
- Starting in late January 2020, the Council began providing Y with ten hours of tutoring per week.
- In its response to my enquiries, the Council said it thought it issued the final plan in late January 2020 but had not. It said the mistake was due to a high turnover of staff in the department. At the time of this decision, it has not yet issued the final EHC plan.
- In its response to Mrs X’s complaint in December 2019, the Council accepted it should have been treating Y as out of school from early 2019. In a later complaint response, it recognised Y’s annual review was late. It said it made improvements to its systems to prevent the issue happening again and had carried out staff training.
- In early February 2019, after Mrs X told the Council she no longer wanted to electively home educate Y, the Council said it would offer a package of support if Y was not in school by the end of the month.
- Mrs X contacted the Council in March, May and June chasing a response to the funding offer. In late June, the Council asked Mrs X for receipts of the resources she bought. Mrs X sent the receipts one week later. In late July, the Council held a panel to decide on the funding. It said it would not cover the costs as the Council does not offer funding for resources for elective home education.
- The Council has accepted this was incorrect as Mrs X was no longer electively home educating.
- Mrs X complained about the Council's failure to provide any funding in December 2019. The Council responded to say it would refund Mrs X around £175, the cost of the teaching materials she bought from February to December 2019.
- When Mrs X told the Council she was not home educating Y anymore, she was clear she wanted him to have a placement in a school. The Council should have found Y a placement as soon as possible. I do not consider it has done this. It was at fault for failing to contact the three mainstream schools it offered to consult in January 2019.
- As Y continued to be out of school, the Council had a duty to provide suitable alternative provision as soon as possible. It did not begin providing tuition until January 2020 as it failed to record Y as no longer electively home educated. This was fault.
- Once Y was diagnosed with autism, the Council contacted two special schools, but did not follow up School B’s response for at least five months. This was fault and contributed to delay in finding Y a school place.
- In its response to my enquiries, the Council offered to make a payment of £2400 in recognition of the impact of the loss of education on Y. I have considered the Ombudsman's guidance on remedies and am satisfied this suitably remedies the injustice Y experienced.
EHC plan review
- The Council was at fault for failing to carry out an early review or re-assessment of Y’s EHC plan when it became aware Mrs X was no longer electively home educating. It missed a further opportunity when Y was diagnosed with autism. A different type of placement and a new diagnosis are significant changes that should have triggered a reconsideration of whether Y’s EHC plan was meeting his educational needs.
- Y’s annual review was due in October 2019, but the Council did not carry it out until December 2019. This was a delay of two months and was fault. In response to Mrs X’s complaints, the Council improved its processes. I am satisfied the Council took appropriate action to prevent recurrence of this fault.
- The Council issued its draft amended EHC plan in mid-January, which was within the timescale set out in the Code. However, the Council then failed to issue its final EHC plan. At the time of this decision, it is one year late and Y’s next annual review is due. The faults by the Council delayed Mrs X’s right to appeal the provision set out in the plan.
- The Council offered Mrs X funding support if Y was not in school by the end of February 2019. It failed to contact Mrs X when Y remained out of school or respond to her contact about the funding until late June 2019. It then wrongly stated she was not eligible for support. Mrs X went to time and trouble pursuing the matter. However, the Council later accepted Mrs X should have received funding. I consider its offer to refund her the costs she spent on buying educational materials was appropriate.
- Within one month of the date of my final decision, the Council will:
- apologise to Mrs X and Y for the stress and anxiety the faults identified in this decision caused;
- pay Mrs X £300 in recognition of the time and trouble she went to due the fault by the Council;
- pay Y £2400, care of Mrs X to recognise the impact of the loss of education on Y; and
- issue the final EHC plan and begin Y’s annual review for 2021. If the 2021 review results in amendments to the EHC plan, the Council should ensure it issues the final plan to all parties.
- remind staff that a significant change of circumstances, including ending elective home education, should prompt consideration of whether a child’s EHC plan needs reviewing or re-assessing.
- remind staff they must monitor school responses to consultations and chase them where appropriate.
- I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.
Parts of the complaint that I did not investigate
- I have not investigated complaint (e). This is because Y’s EHC plans did not contain any external provision that the Council could deliver outside of a school setting.
Investigator's decision on behalf of the Ombudsman