Summary: Mrs C complained about delay by the Council in issuing her son’s Education Health Care Plan following a review and reassessment. Mrs C also says that the Council has failed to acknowledge that she was forced into Elective Home Education. We find the Council failed to, complete an annual review of the Plan in 2018, inform Mrs C of its reassessment decision in a timely manner and there was a significant delay in issuing a final Plan. We recommend an apology and financial payment for the injustice caused. We have found no further fault by the Council.

The complaint

1. Mrs C complains about the Council’s handling of her request made in October 2018 for an Education, Health and Care Plan (EHCP) for her son, Y. Mrs C says the Council:

• failed to notify her of its decision to not reassess the EHCP and then changed its decision;
• significantly delayed issuing the EHCP and did not issue a final EHCP until May 2020;
• failed to make Special Educational Needs (SEN) provision specified or alternative provision;
• wrongly said that the family have had opted for elective home education, despite Mrs C repeatedly explaining that this was not the case; and
• refused a personal budget request for help.

2. Because of this Mrs C says:

• her son has missed nine months of education and is not getting the educational provision he needs;
• she has been distressed and anxious herself because of the impact of the failures on her son; and
• her rights of appeal against the EHCP have been delayed and she has spent considerable time and trouble trying to ensure her son gets the correct provision.

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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)

The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. Once the person has appealed, we have no discretion and cannot investigate. (Local Government Act 1974, section 26(6)(a), as amended)

4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. Caselaw has confirmed that if someone has lodged an appeal to the SEND Tribunal the Ombudsman cannot investigate any matter which is inextricably linked to the matters under appeal. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407). This means that if a person disagrees with the placement named in an EHCP we cannot seek a remedy for lack of education after the date the appeal was submitted.
6. 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)
7. 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

8. I considered the information Mrs C provided and discussed the complaint with her. I also considered the information the Council provided in response to my enquiries and considered the relevant law and guidance on provision for Special Educational Needs.
9. I provided Mrs C and the Council with a copy of my draft decision and invited their comments. I considered all the comments I received before reaching a final decision.

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What I found

Education Health and Care assessments and Plans

10. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. Section I names the placement or type of placement the child is to attend. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
11. Local authorities have a duty to arrange for the educational provision set out in the EHCP.
12. The Ombudsman cannot investigate complaints about the Council’s decision whether to conduct an assessment, or about the content of the EHCP. These are appealable to the Special Educational Needs and Disability Tribunal.

Reviews

13. Councils must review an EHCP at least every 12 months. The first review must take place within 12 months of the date when the EHCP was issued, and then within 12 months of any previous review. They may carry out a review earlier than this.

Re-assessments

14. Re-assessments must follow the same process as for a first EHC needs assessment. The maximum timescale for completing the re-assessment and issuing the final EHCP is 14 weeks from the decision to re-assess. (The Code paragraphs 9.191 and 9.192)

Alternative education

15. Councils have a duty to make arrangements for the provision of suitable full-time education at a school or elsewhere for children of compulsory school age, who “by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless arrangements are made for them”. (Education Act 1996, Section 19)

How the Council supports children out of education

16. The Council allocates an Education Welfare Officer (EWO) to all maintained schools to provide support to schools and parents with pupil attendance. If it receives a referral for support, the EWO contacts the school and will then arrange a meeting at school to find out why the child is not attending. The EWO is responsible for working with all parties to devise an action plan to support full-time attendance at school or any agreed alternative provision.

Elective Home Education

17. Under Section 7 Education Act 1996 parents of children of compulsory school age must ensure the child receives an “...efficient full-time education suitable to his or her age, ability and aptitude...either by regular attendance at school or otherwise...”
18. Under the Department for Education Guidance for councils entitled “Elective Home Education” (2007) a suitable education is one that “primarily equips a child for life within the community of which he or she is a member, rather than the way of life in the country, as long as it does not foreclose the child’s options in later years to adopt some other form of life...”
19. The Guidance warns councils must recognise there is no single schooling at home model but many valid approaches to education at home.
20. The Guidance expects councils to have a policy and procedure for dealing with elective home education. The Guidance does not direct councils on what those policies should be. Councils have discretion to adopt their own policies and procedures for ensuring home educators provide a suitable education.

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Background

Chronology of key events

21. In September 2015 Y was diagnosed with Autistic Spectrum Disorder (ASD).
22. The Council issued an EHCP for Y in September 2017. This set out his special educational needs and named his placement at a mainstream primary school.
23. The School’s attendance records show that between September 2017 and December 2017, Y was absent for six days and was late on six occasions.
24. In January 2018 Mrs C informed the Special Educational Needs and/or Disabilities (SEND) Team by email, that Y was not attending school. She asked the Council for advice about a change of placement, Elective Home Education (EHE) or a flexible school timetable. Mrs C raised similar concerns with the SEND team in April 2018. An EWO spoke with the School and offered advice to support Y’s attendance. The EWO arranged a meeting with the School for 18 May 2018. Mrs C cancelled the meeting as Y’s attendance had improved.
25. The SEND team carried out a review of the School’s SEND provision in June 2018. A month later an annual review meeting of Y’s EHCP took place and the Council agreed to amend the EHCP but failed to do so. A further meeting to complete the annual review was arranged for 19 September 2018. This meeting was cancelled by the School due to a member of staff from the SEND team being unable to attend.
26. On 7 October 2018, Mrs C raised several concerns with the SEND team about Y’s educational provision, attendance at school, and annual review not being completed. She felt she was being forced into EHE and asked for advice. The EHE officer advised Mrs C that if she opted for EHE it was her responsibility to ensure Y’s needs were met and he received a full-time and suitable education in accordance with his EHCP.
27. The EWO wrote to Mrs C on 17 October 2018 and invited her to attend a meeting at the School the next day. The information provided by the Council shows it was agreed that Y would be “supported back into school using a small steps approach designed to slowly build his confidence”. The plan was to start with one hour a day and building this up to full-time attendance.
28. A week later Mrs C informed the SEND team that she would be educating Y at home. She asked the School to remove Y from its register.
29. A charity representing Mr and Mrs C emailed the Council on 30 October 2018. It said:

• Mr and Mrs C felt that the School was not implementing the EHCP;
• The School gave the family one days’ notice to attend the re-integration meeting and refused to give parents the chance to get an advocate and childcare for Y, so that they could both attend the meeting;
• The plan to re-integrate Y back into school was not suitable and it was “too much too soon”.
• The EWO refused to accept the GP’s letter which supported Y’s refusal to attend school was due to anxiety;
• The parents requested a re-assessment of Y’s EHCP.

30. On 7 November 2018, Mrs C also sent an email to the SEND team stating she had been forced into EHE and requested a reassessment of the EHCP. In a further email, Mrs C stated EHE was not her first option for Y but necessary to ensure his wellbeing.
31. An EHE officer subsequently contacted Mrs C by email to arrange a meeting to review the arrangements in place for Y. Mrs C responded and said both her and Y were “loving” home education and it was having a positive impact on Y and their relationship. She said she would want Y to return to an educational setting when he was ready. The EHE officer clarified with Mrs C that she had informed the School in writing that Y was being electively educated at home and was aware that as Y’s parent it was her responsibility to deliver a full-time and suitable education to Y. The EHE officer sent a EHE questionnaire for Mrs C to complete.
32. The EHE officer met with the family on 20 November 2018 and was satisfied Y was receiving an efficient and suitable full-time education at home. The EHE officer produced a draft report and sent this to Mr and Mrs C for their comments. Mr and Mrs C did not comment or return the report. They also declined to complete the EHE questionnaire.
33. The SEND team declined Mrs C’s request for a reassessment on the basis Y’s needs had not significantly changed since the last needs assessment was completed. It failed to inform Mrs C of its decision until she chased the Council for an update on 4 December 2018.
34. Mrs C then complained to the Council and a complaint meeting was held in mid- January 2019. It was agreed that the EHCP would be amended by 15 March 2019 and Y would return to School, after the Easter holidays.
35. The EHE officer arranged a meeting for 21 January 2019 with the SEND team, Mr and Mrs C and Y. The purpose of the meeting was to review the EHCP and discuss whether Mr and Mrs C intended to continue with EHE or access and apply for a school/ and formal education. The family did not attend this meeting. Mrs C says the meeting was not confirmed by the Council.
36. On 4 February 2019, Mrs C asked the SEND team for the refusal to reassess letter, information about the overdue annual review and an amended EHCP. She asked for help with her son’s education and for a placement or EOTAS (Educated Other Than at School). She also requested an update on her complaint.
37. The Council sent a decision not to reassess letter to Mrs C on 5 February 2019. Two days later it agreed to a reassessment, which was to be completed by 16 May 2019.
38. A further complaint meeting was held at the beginning of May 2019. Mrs C expressed that she wanted to work towards Y attending a school (not mainstream) through EOTAS and with a personal budget. It was agreed that Mrs C would start considering schools.
39. In May 2019, the Council agreed for home tuition for Y alongside Mrs C electing to EHE. This commenced in June 2019. This provision was made by the Council in addition to Y being EHE, to ensure Y was receiving an efficient and suitable education whilst his placement and provision moving forward was being considered.
40. On 20 June 2019, the SEND modification Panel amended the EHCP and included 25 hours of resource provision in a mainstream school. A further draft EHCP was issued on 27 June 2019.
41. The Council then responded to Mrs C’s complaint by letter. It confirmed that SEND tuition had commenced at two one-hour sessions per week. It said the EHCP would be discussed at the SEND Moderation Panel to discuss the provision for Y, including the request for a personal budget. The Council invited Mrs C to contact social care about a social care personal budget and support available. The Council confirmed that Mrs C would have a right to appeal to the SEND tribunal once the final EHCP had been issued.
42. At the end of July 2019 Mrs C contacted the SEND team and requested that the EHCP be kept at draft stage for a further three weeks. She said that the proposed provision of mainstream education was inappropriate, and a reassessment of Y’s needs had not yet been completed. Mrs C said that she was willing to waiver her appeal rights.
43. On 21 January 2020, the EHE team wrote to Mrs C and offered an annual visit to review the EHE arrangements. Mrs C declined this meeting and any future meetings.
44. A final EHCP was issued on 5 December 2019 and a further final EHCP was issued on 15 May 2020. On 22 June 2020 Mrs C appealed to the SEND Tribunal.

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Analysis

45. As Y’s health needs and absence at school is inextricably linked to his SEN and EHCP, I have not investigated or made findings from September 2017 to December 2017 as Mrs C had a right to appeal the EHCP.
46. In July 2019, Mrs C asked the Council not to issue the final EHCP and I find that in doing so she waived her rights to appeal from 30 July 2019. Therefore, I have not investigated or made any findings from this date onwards.
47. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or otherwise.
48. From January 2018 the Council was aware of Mrs C’s concerns about Y’s attendance due to his anxiety. There is no evidence the Council responded to her concerns. The Council did not take any further action until April 2018. The Council’s failure to respond to Mrs C’s concerns is fault and represents a missed opportunity to address issues about Y’s attendance sooner. I note that Y’s attendance had improved in May 2018 and Mrs C subsequently cancelled the meeting arranged by the EWO.
49. An annual review meeting of the EHCP took place in June 2018. However, the Council failed to complete the annual review and update Y’s EHCP. The Council has accepted it was at fault. As a result, the Council and the School did not have a full up to date understanding of Y’s needs and how to meet those needs.

Elective Home Education

50. The law does not set out in detail the education that a child should receive or how it should be provided. However, it says that it is a parent’s legal duty is to ensure their children receive “efficient full-time education” that is suitable to their age, ability and aptitude and any special needs they have. This can be in a school ‘or otherwise’.
51. Mrs C complained the Council failed to recognise that she was not electively home educating her son, had been forced to deregister him from school as it was not meeting his needs and was affecting his health and well-being. The Council’s records indicate that Mrs C made a decision to deregister her son and notified the school she was EHE.
52. Our role is to consider whether there was fault by the Council. However, we cannot question whether a council’s decision or judgement is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached.
53. The education welfare service does not work in isolation, it works closely with schools. The evidence shows a meeting took place at the School with the EWO and Mrs C in October 2018, to try and resolve Y’s attendance issues. That meeting was in line with the Council’s guidance and an appropriate response to re-integrate Y back into education. It was agreed that Y would return to School on 25 October 2018 with a support package, amended timetable and extra support from teachers in planning activities.
54. The professional view of the Council’s officers was that Y could access education at school. Mrs C disagrees and says the EWO refused to accept the GP’s letter which supported Y’s refusal to attend school due to anxiety. The letter did not specifically say Y was medically unfit to attend school. It was the Council’s view that there was an appropriate package of support available to support Y to reintegrate back into school. This is a decision the Council is entitled to make.
55. On 24 October 2018 Mrs C made an informed decision to deregister Y from School and EHE. I say this because the EHE officer explained to Mrs C if she opted for EHE she would be responsible for ensuring Y’s needs were met and he received a full-time and suitable education and educational provision as set out in his EHCP. The offer of educational provision which Y was entitled to was available in the form of a school place which Mrs C declined, to instead EHE.
56. Mrs C says she consistently told the Council she was not EHE. Whilst the evidence does show Mrs C repeatedly said she had been forced into EHE, I have not seen any evidence that Mrs C told the Council she was no longer willing to provide EHE and wanted a school place for Y. The Council has provided evidence of communication from Mrs C saying she was “loving” home education as was Y and she wanted Y to return to an educational setting when he was ready. The records show Mrs C was inconsistent in her communication and changed her mind about education in a school environment and requested EOTAS, a personal budget and tuition at home. I note that Mrs C disagrees with this and says that she was consistent in her request for a home tutor for Y. However, because Y was being EHE the Council did not have a duty to provide home tuition, but it did so in June 2019.
57. I therefore do not uphold Mrs C’s complaint that she was forced into EHE.
58. The decision as to whether a child who is not registered at a school is receiving suitable education is for the Council. The EHE officer was satisfied that Y was receiving an efficient and suitable full-time education. Mrs C did not complete the EHE questionnaire and did not attend the meeting in January 2019 with the EHE officer and SEND team. Mrs C says this is because the Council failed to notify her of the date. Mrs C also declined the offer of a meeting with the EHE team in January 2020. The law does not require parents to respond to requests for information or to attend any meetings. However, government guidance notes that it would be sensible for them to do so. I find the Council took reasonable steps to support Mrs C and Y.

Delay in issuing the EHCP

59. Mrs C requested a reassessment of Y’s EHCP in November 2018. The Council initially refused to reassess the EHCP and there was a five-week delay in issuing the decision letter to Mrs C. This was fault and delayed Mrs C’s rights to appeal.
60. The Council then agreed to a re-assessment and the EHCP should have been completed by mid-May 2019. However, the Council did not produce a final plan until December 2019. A further final plan was issued in May 2020. This is fault and the Council has accepted it did not meet statutory timescales. The delay caused Mrs C and her family distress and put them to significant time and trouble pursuing the Council to deliver suitable provision for Y.
61. However, at the end of July 2019, Mrs C asked the Council to delay issuing the final EHCP for three weeks. So, while it is accepted that the Council failed to comply with the set timescales, I must also consider the delays mentioned here and that Mrs C would have had appeal rights from end of July 2019. Therefore, the delay in issuing the EHCP amounts to ten weeks.

The extra report and support commissioned by Mrs C

62. Mrs C paid for an educational psychologist’s report. She said she had to do this because the one carried out by the Council was inadequate. The Council has a duty to make enquiries with professionals. If Mrs C feels it had not done this correctly, the forum to challenge this would be at the appeal tribunal.
63. Mrs C says she has paid an advocate to prepare her appeal and provide support during the hearing. It is not the Ombudsman’s practice to recommend reimbursement of fees in situations such as these.

Agreed action

64. Within one month of this decision the Council will:
1. Apologise to Mrs C for the faults I have identified in paragraphs 48,49, 59 and 60 and the injustice this has caused her and Y.
2. Pay Mrs C £150 for the failure to complete the annual review in June 2018 and the uncertainty this caused.
3. Pay Mrs C £100 for the delay in issuing a reassessment decision letter.
4. Pay Mrs C £400 for the delay in issuing the final EHCP and the distress and uncertainty this cause.
65. In response to the Ombudsman’s enquiries the Council has provided details of improvements it has made to the EHE process. This includes a comprehensive staff training programme to ensure that EHE and SEND legislation and guidance are understood and followed. I welcome the action taken by the Council.

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Final Decision

66. I have found some fault by the Council causing an injustice to Mrs C and Y. The Council has agreed to my recommendations and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman