Summary: Mrs Y complained the Council failed to provide her son, who was being educated at home, with alternative provision. We have not found fault by the Council regarding its response to Mrs Y’s request it make alternative provision for her son.

The complaint

1. The complainant, who I am calling Mrs Y, complains the Council has failed to provide her son, who I am calling Z, with alternative provision from August 2021.
2. Mrs Y says:

• Z has an Education, Health and Care (EHC) Plan. He attended a mainstream school during the COVID 19 pandemic. He had difficulties coping because of his special educational needs (SEN) and health issues. By August 2021, Z found school overwhelming and could not continue to attend. She told the Council and asked it to make alternative provision for Z at home;
• The Council failed to make any alternative provision for Z. She has had to provide and pay for Z’s educational materials, Occupational Therapy and Speech and Language therapy; and
• She is finding it very difficult to continue to provide this for Z without the Council’s help. It has refused her request for a personal budget to fund Z’s support.

3. Mrs Y wants the Council to compensate Z for the lack of alternative provision and support.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
5. 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)
6. 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)

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How I considered this complaint

7. I spoke to Mrs Y, made enquiries of the Council and read the information Mrs Y and the Council provided about the complaint.
8. I invited Mrs Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Education, Health and Care Plan (EHC Plan)

9. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and arrangements for meeting them.
10. Local authorities (councils) have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
11. The First-Tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
12. We cannot direct councils to make changes to the special educational provision set out in the plan or to name a different school. Only the SEND Tribunal can do this.

Children with SEN educated at home

13. Parents have the right to educate children, including children with SEN, at home. (The Education Act 1996 section 7)
14. Where a council and parents agree home education is the right provision for a child with an EHC Plan, the plan should state the child will be educated at home. The council must then arrange the special education provision set out in the plan. (Children and Families Act 2014 section 42(2))
15. Where the EHC Plan gives the name of a school or type of school for the child and the parents decide to educate at home:

• the council is not under a duty to make the special provision in the plan provided it is satisfied the arrangements made by the parents are suitable;
• the council must review the plan annually to assure itself the provision in the plan continues to be appropriate and the child’s SEN continue to be met; and
• where the council decides provision is appropriate, it should amend the plan to name the type of school which would be suitable, but state parents have made their own arrangements under Section 7 of the Education Act.

Alternative Provision

16. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.

What happened

17. I have set out a summary of the key events below. It is not meant to show everything that happened.

Background

18. In 2017, Z was diagnosed as having autistic spectrum condition.
19. Mrs Y elected to home educate Z until October 2020. She then enrolled him at a mainstream primary school.
20. In January 2021, the Council issued Z’s first EHC Plan. This set out his SEN provision to be provided by his mainstream primary school, named as his placement in the plan.
21. Mrs Y appealed to the SEND Tribunal about Z’s SEN and provision set out in sections B and F of his plan. She also asked the Tribunal to make recommendations about Z’s health and social care needs and provision.
22. The Tribunal issued its decision in July 2021. This confirmed:

• Mrs Y and the Council had agreed the content of sections B and F;
• Mrs Y and the Council had agreed the content of the sections about Z’s social care needs and provision; and
• It recommended the Council secure referrals from Z’s GP to NHS paediatric teams for investigation of his health issues.

August to September 2021

23. On 11 August the Council issued Z’s final EHC Plan as agreed during the tribunal process, naming his mainstream primary school as his placement.
24. On 18 August Mrs Y sent an email to an officer in the Council’s SEN team. She said she was unhappy about the outcome of the EHC Plan process and wanted to de-register Z from his school.
25. On 20 August, the officer told Mrs Y, if she wanted to withdraw Z from school, she should contact the elective home education team and provided their contact details.
26. On 9 September Mrs Y sent an email to the Council stating Z would no longer attend the mainstream primary school named in his plan and she would continue to home educate him. She asked the Council to amend his EHC Plan to reflect this.

November to December 2021

27. Mrs Y asked the SEN team whether Z’s plan had been amended to show his educational placement was now alternative provision (education otherwise than at school – EOTAS).
28. A SEN officer told Mrs Y they would check the status of Z’s plan and amend it to Elective Home Education (EHE) if this had not already been done. The officer then sent the plan to Mrs Y, amended to state Z was being electively home educated.
29. Mrs Y replied and said Z’s education arrangement should be stated as EOTAS and not EHE. She also asked the Council to fund the cost of Z’s online schooling.
30. In its response of 21 December, the Council said:

• It could not change Z’s placement to EOTAS. This would be a decision for a SEND Tribunal;
• The Council used EOTAS as a placement when a suitable school placement could not be found;
• With regard to funding for an online education programme, by choosing to electively home educate, as Mrs Y had notified the EHE team in September, parents take on the responsibility of education provision. The Council does not provide any funding in this situation; and
• The only alternative the Council could offer was if Mrs Y wanted Z to return to school. It would be happy to consult and find Z a school place if that was her preference. She should let the Council know if she wanted to proceed with this.

Mrs Y’s complaint to the Council

31. In January 2022, Mrs Y complained to the Council about a number of issues. Her complaint about Z’s educational arrangements was that; The Council had not provided any official document, only its email, to show its refusal to provide financial support for Z’s EOTAS provision including his speech and language and occupational therapy.
32. In its final complaint response of September 2022, the Council said:

• It apologised for the delay in issuing its response;
• The issue of a personal budget to fund Z’s education provision not part of Mrs Y’s Tribunal appeal; and
• Its view was a personal budget was only available for children who were not in an educational placement because the Council had been unable to meet their needs. Here, Mrs Y had elected to home educate Z and so was not eligible for a personal budget.

33. Mrs Y was not satisfied with this response and brought her complaint to us.

My findings – was there fault by the Council causing injustice?

34. My findings are based on the evidence seen, including the records provided to me by the Council in response to my information request. I have summarised the relevant evidence in the “what happened” section above.
35. The Council considered a mainstream primary school was a suitable setting for Z when it issued his first EHC Plan in January 2021. Mrs Y did not appeal to the SEND Tribunal against the decision about his setting. When the Council issued the amended plan in August 2021, Z’s named placement remained his mainstream primary school.
36. I have not seen any evidence Mrs Y asked the Council in August or September 2021 to make alternative provision for Z. Her emails show she elected to home educate him. I understand Mrs Y contacted the Council’s elective home education team and it was agreed her arrangements for Z’s home education were suitable.
37. I consider the Council clearly set out its position to Mrs Y in December 2021. It explained, as she had elected to home educate Z, and alternative provision (EOTAS) was not named as his setting in the EHC Plan, it was her responsibility to fund his education, and not the Council’s. It also confirmed it would consult about a suitable placement for Z if Mrs Y wanted him to return to school.
38. The Council made arrangements to provide Z with a suitable education at the mainstream primary school named in his EHC Plan. Mrs Y elected instead to make suitable arrangements to educate him at home. On this basis, my view is the Council was not required to make alternative provision for Z or provide Mrs Y with a personal budget to fund his education and SEN support.
39. I have not found fault with the Council in the way it responded to Mrs Y’s request it make alternative provision for Z.

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Final decision

40. I have completed my investigation of this complaint. I have not found fault by the Council regarding its response to Mrs Y’s request it make alternative provision for Z.

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Investigator's decision on behalf of the Ombudsman