Summary: Mrs X complained the Council failed to provide education for her child for over three years. Mrs X also complained the Council failed to review or update her child’s Education, Health and Care Plan. We found fault with the Council failing to provide suitable education for Mrs X’s child from 22 May 2023 to 28 August 2024. We also found fault with the Council delaying by 17 months outside the statutory timescales in reviewing Mrs X’s child’s Education, Health and Care Plan. The Council has also accepted it failed to provide provision to Mrs X’s child from their Education, Health and Care Plan or provide suitable education from 3 September 2024 to 30 May 2025. We have detailed the actions the Council has agreed to take to address the injustice its fault caused in paragraph 86 of this decision statement.

The complaint

1. Mrs X complained the Council failed to provide education for her child for over three years.
2. Mrs X also complained the Council failed to review or update her child’s Education, Health and Care Plan.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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 significant injustice, or that could cause injustice to others in future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. 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)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

9. I have investigated Mrs X’s complaint about the failure to provide education for her child and delays in the Education, Health and Care Plan process from 12 May 2023.
10. I have not investigated any matters before 12 May 2023 because this is about a period over 12 months since Mrs X brought her complaint to the Ombudsman. Mrs X brought her complaint to the Ombudsman in October 2024 and I have exercised my discretion to investigate this complaint back to 12 May 2023. I have chosen 12 May 2023 as this is the point the Council issued a draft EHC Plan for Mrs X’s child.
11. Mrs X would have been aware of issues with her child’s education and delays with the production of the Education, Health and Care Plan since at least August 2022. There are no good reasons Mrs X could not have brought her complaint to us sooner. As such, I cannot investigate matters before 12 May 2023.
12. I have ended my investigation about the suitability or the failure to provide education as of 3 September 2024. This is because the Council produced a Final Education, Health and Care Plan for Mrs X’s child and Mrs X used her appeal rights to the SEND tribunal on 20 September 2024. As part of Mrs X’s appeal to the tribunal, she disputed the Council failing to name an educational placement in Section I of her child’s Education, Health and Care Plan.
13. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
14. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the educational placement in the EHC Plan, we cannot investigate a lack of alternative educational provision.
15. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.
16. However, I have investigated the failure of the Council to provide EHC Plan provisions since 3 September 2024. This is because Mrs X has not appealed any parts of Section F of the EHC Plan to the SEND Tribunal. The Council still had a duty to deliver the Section F provision regardless of the appeal to the SEND Tribunal. The Section F provision could be provided in any setting and was therefore not fundamentally linked to the appeal about Section I.

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How I considered this complaint

17. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
18. Mrs X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Rules and Regulations

EHC plans

19. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
20. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
21. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments, and re-assessments, and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
22. Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
23. If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the Tribunal.
24. There is a right of appeal to the Tribunal against a council’s:

• decision not to carry out an EHC needs assessment or reassessment;
• decision that it is not necessary to issue a EHC Plan following an assessment;
• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;
• decision not to amend an EHC Plan following a review or reassessment; and
• decision to cease to maintain an EHC Plan.

25. If a person appeals to the SEND Tribunal, a council can agree to a Consent Order to resolve the matter in which it agrees to complete the actions a person has requested.
26. Where an appeal is made about a Council’s decision not to carry out an EHC needs assessment and the Council agrees to a consent order to carry out an assessment it must:
• Notify a parent within two weeks of the consent order of its intention to assess the child for an EHC plans.
• Send a finalised plan, should it consider it needs to do so, within fourteen weeks of the consent order.
27. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.

Elective home education

28. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school (EOTAS), for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
29. The SEN Code of Practice 2015 outlines that a council should work with a parent to ensure a child’s SEN needs are met when they are being electively home educated. The Code of Practice outlines that the Dedicated School Grant is intended to fund provision for all relevant children in the authority’s area, including home educated children. A council should fund children’s SEN needs where it is appropriate to do so.
30. The Department for Education confirms a local authority has no duty to assist a parent with costs they incur while electively home educating their children. However, a local authority must given “reasonable consideration” to any request for assistance from a parent who is electively home educating their child.
31. A parent can choose to end home education at any time by applying for school places or contacting the Council for support.
32. In circumstances where the child cannot attend school, the council should be offering alternative provision to reduce the likelihood that a child will end up without suitable education.

Alternative provision of education

33. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
34. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
35. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
36. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
37. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;
38. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled
39. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
40. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

Background

41. Mrs X’s child, who I shall refer to as Y, attended school until 2021. In 2021, Mrs X chose to Electively Home Educate Y following difficulties with school attendance.
42. The Council checked Y’s education in June 2021 and considered this suitable and efficient.
43. Mrs X applied for an EHC Plan Needs Assessment for Y in June 2021. The Council declined to assess Y in June 2022. Mrs X appealed this decision to the SEND Tribunal.
44. On 24 August 2022, the Council overturned its decision not to assess Y for an EHC Plan resulting in a tribunal Consent Order.
45. During 2022, Mrs X also applied for a school placement for Y but the school declined Y. Mrs X decided not to appeal the school’s decision. By November 2022, the Council completed a further visit to assess Y’s access to education and confirmed that Y was getting a suitable and efficient education.

Matters relating to this complaint

46. On 12 May 2023, the Council issued a draft EHC Plan for Y.
47. Mrs X asked the Council to consult with two schools for Y as part of the EHC Plan process on 15 May 2023. The Council consulted with one of these schools.
48. On 3 July 2023, Mrs X told the Council she could not transport Y to the schools she had requested on 15 May 2023 and Y would not accept transport from other people. Mrs X sought a place at a different school. The Council consulted with this school.
49. The Council agreed to arrange for tuition for Y on 5 September 2023 and consulted a tuition provider. This provider spoke with Mrs X but could not confirm an agreement over the number of hours.
50. On 12 October 2023, Mrs X told the Council the tuition provider had not arranged tuition for Y. The Council chased the tuition provider who agreed to start provision on 23 October 2023. The Council agreed for the tuition provider to put in place one hour each day over four days with the view to increasing this in line with what Y could cope with.
51. The tuition provider began on 23 October 2023.
52. Mrs X cancelled the tuition on 30 October 2023 with the last session being on 27 October 2023. Mrs X told the Council Y did not want tuition in the home and instead wanted to attend a school.
53. In November 2023, Mrs X asked the Council to name New Leaf Triangle in Y’s EHC Plan. The Council told Mrs X New Leaf Triangle as an Alternative Provision of education provider so it could not be name this in an EHC Plan. Schools consulted for Y also offered places for Y in November 2023 but Mrs X declined these because she could not drive the distance to these schools. The Council said travelling distances was not a reason to refuse a school placement.
54. On 5 December 2023, Mrs X made a request for Education Otherwise Than At School (EOTAS) for Y. The Council responded on 14 December 2023 to ask about the tutoring which it had arranged for Y and to confirm if this had now been cancelled.
55. The Council held a meeting on 11 January 2024 and agreed to present the request for EOTAS at panel.
56. In February 2024, the Council considered Mrs X’s request for EOTAS at panel. The panel declined EOTAS because there were potential offers of education for Y in school who can meet Y’s need. The Council noted these places were not available until September 2024. The panel recommended formal EOTAS was declined and placements instead explored with Section 19 provision in place.
57. The Council made a referral for Y to New Leaf Triangle on 14 March 2024. New Leaf Triangle confirmed it did not have a place available for Y until September 2024.
58. The Council took a request back to panel for EOTAS in August 2024; the panel declined this again because school placements had offered a place for Y.
59. On 28 August 2024, Y began to access provision at New Leaf Triangle. The Council had arranged for two sessions each week of three hours each, totalling six hours each week.
60. Mrs X raised a formal complaint with the Council and provided the full information by 3 September 2024. Mrs X said:
• Y had been out of education for over three years.
• Y had an outdated EHC Plan.
• She had applied for EOTAS for Y but the Council had declined.
61. On 3 September 2024, the Council issued a Final EHC Plan for Y. Within the EHC Plan the Council detailed in Section I that Y would transfer to specialist provision when a place becomes available. Within Section F the EHC Plan detailed the following provision:
• Relevant professionals working with Y and Mrs X would provide an enhanced transition plan to support Y back into an educational setting
• The teaching staff in school would provide various educational and support provisions for Y including support with emotional needs and high level of adult support.
• A curriculum-based assessment of Y’s educational skill level and a subsequent curriculum tailored to meet developmental needs focusing on Maths and English skills. This should include twice daily 1 hour lessons and twice daily 1:1 teaching of core maths skills for 20-30 minutes.
• Y’s teachers should use best endeavours for using reasonable adjustments for communicating with Y and use emotion coaching techniques.
• Provision of 20-30 minutes once per week in small group setting of structured friendship programmes and twice weekly 30 minutes sessions of supported opportunities to work with peers in small group settings.
• Weekly provision of a bespoke literacy curriculum for 30 minutes.
• Y needs funding of the equivalent of 25 hours of support to provide the provision detailed in Section F and the meet the outcomes set in Section E.
• Y’s school would ensure access to the provisions in Y’s EHC Plan and an appropriate curriculum.
62. On 6 September 2024, Mrs X appealed the failure of the Council to name a suitable school placement in Section I of Y’s EHC Plan to the SEND Tribunal.
63. On 6 November 2024, New Leaf Triangle told the Council Y had only attended 15% of the sessions on offer.
64. On 9 December 2024, the Council issued a complaint response to Mrs X. The Council apologised for its poor communication with Mrs X and offered her £300 for the delays and distress caused. The Council also offered a meeting to Mrs to discuss the issues she had raised.
65. Mrs X contacted the Council to arrange the meeting but the Council failed to facilitate this. The Council did not pay Mrs X the £300 offered in the complaint response.
66. New Leaf Triangle contacted Mrs X about Y’s placement in December 2024. New Leaf Triangle asked if Y would return in January 2025. Mrs X said Y would not be returning until March 2025 because of a medical issue making walking painful. The Council cancelled the placement at New Leaf Triangle.

Analysis

Production of the EHC Plan

67. The Council had fourteen weeks to produce a Final EHC Plan for Y following the Consent Order dated 24 August 2022. This meant the Council had until 30 November 2022 to produce this Final EHC Plan.
68. By the start date of my investigation on 12 May 2023, the Council was already outside the timeframe for producing the Final EHC Plan. The Council failed to produce the Final EHC Plan until 3 September 2024. This meant the Council delayed by 22 months in total outside the timescales and just under 17 months from my investigation period. This delay was fault.
69. As part of my investigation, the Council has offered £500 to Mrs X in recognition of its delay which denied Mrs X an earlier right to appeal the EHC Plan.
70. The Council has also offered a further £200, on top of the £300 it offered in the Stage 2 complaint response, in recognition of the distress, time and trouble Mrs X has experienced because of its delays.
71. A total of £1,000 for the delays up to 3 September 2024 falls in line with the Ombudsman’s guidance on remedies. I consider this total offer of £1,000 reflects the injustice caused to Mrs X, through her distress and inconvenienced, and to Y. The injustice caused to Y was through the uncertainty about the content of Y’s EHC Plan meaning provision could not be delivered sooner, until finalisation of the EHC Plan.

EHC Plan provision

72. The Council had no duty to put in place any EHC Plan provision until it finalised Y’s EHC Plan on 3 September 2024. I have already addressed the delays in production of Y’s EHC Plan in paragraphs 67 to 71.
73. The Council accepted as part of its response to the Ombudsman’s enquiries it had failed to provide Y’s EHC Plan provision since 3 September 2024. The Council has explained this is a result of the breakdown in the alternative provision of education placement and its failure to secure alternative provision. The Council failing to deliver the Section F provision is fault.
74. I have addressed the injustice caused through this fault in paragraphs 84 to 85.

Alternative Provision of education

75. Mrs X decided to electively home educate her child before the start point of my investigation. I am not investigating any matters up to 12 May 2023 about Y’s education at home or how the Council considered this.
76. Mrs X asked the Council for a school placement for Y on 15 May 2023. This request for a school placement from Mrs X told the Council that Mrs X no longer wished to home educate Y.
77. The Council must arrange alternative provision of education, in the absence of a suitable school placement, from the sixth day of absence. Given Mrs X asked for a school placement on 15 May 2023, the Council had a responsibility to provide education from this date. Since the Council could not find a suitable school placement for Y it should have considered alternative provision of education to start from 22 May 2023.
78. The Council failed to arrange any education for Y either at school or as alternative provision of education until 23 October 2023. This was fault. This fault caused Y to miss the equivalent of one full term of education without any provision.
79. Following arranging alternative provision on 23 October 2023, Mrs X cancelled this on 30 October 2023. The Council was not at fault for Mrs X cancelling this provision. However, the Council had a duty to consider the reason for Mrs X cancelling the provision, which in this case was Y not wanting education in the home setting. The Council was also responsible for sourcing suitable replacement alternative provision in the absence of a school placement. The Council should have put this in place by 6 November 2023.
80. While the Council considered a school placement was suitable for Y, and places had been offered for Y, the Council also noted that these placements were not available until September 2024. The Council delayed finding replacement provision for Y until 28 August 2024 when Y started at New Leaf Triangle; this delay of two full terms and six weeks was fault.
81. From 28 August 2024, the Council made alternative provision of education available to Y through New Leaf Triangle. New Leaf Triangle was an educational placement previously requested by Mrs X and one she had approved. I do not find fault with the Council choosing this alternative provision of education for Y at that time.
82. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
83. I have considered Y’s individual circumstances and our guidance on remedies. This considers the lack of formal educational provision Y received caused by the Council’s failure or delay in sourcing it. I consider, the Council should pay Miss X £1,800 per term for Y’s missed education. This totals £6,230 from 22 May 2023 to 3 September 2024 for the missed education caused by the fault of the Council.
84. As explained in paragraphs 12 to 15, I cannot investigate matters after 3 September 2024 about Y's loss of education because of the appeal to the SEND Tribunal. However, as explained in paragraph 73 Y went without any EHC Plan provision since 3 September 2024. The Council has offered £70 per week for Y’s missed education up to 30 May 2025. This includes any educational provision not delivered from Y’s EHC Plan. Since the Council has offered this amount for Y’s lost educational provision, I do not have to investigate this time period or make any finding of fault, which would cross-over with the jurisdiction of the SEND Tribunal. The total award for this would total £2,198 from 3 September 2024 to 30 May 2025.
85. The Council has also committed to providing Mrs X with a named case manager to work with Mrs X at updating Y’s EHC Plan and discussing options for a personal budget. This is suitable action for the Council to take to address issues with Y’s access to education moving forwards. I cannot address finding a suitable school placement for Y as this is a matter for the SEND Tribunal following Mrs X’s appeal.

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Action

86. Within one month of the Ombudsman’s final decision the Council should:
• Provide a payment totalling £1,000 for the injustice caused to both Mrs X and Y by the Council’s delays in producing Mrs X’s child’s EHC Plan.
• Provide a payment of £6,230 for Y’s missed education caused by the fault of the Council from 22 May 2023 to 3 September 2024.
• Provide a payment of £2,198 for Y’s missed education, caused by the fault of the Council, and missed EHC Plan educational provision from 3 September 2024 to 30 May 2025.
• Confirm in writing Mrs X’s named case manager and that this case manager will work with her to update Y’s EHC Plan and discuss options for a personal budget should Mrs X wish.
87. The Council should provide us with evidence it has complied with the above actions.

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Decision

88. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman