Summary: Ms B complains about the actions of the Council associated with the process for an Education, Health and Care (EHC) plan for her son. She also complains about the Council’s failure to provide or fund home tuition for him. We find there was fault by the Council in the EHC plan process, and in record keeping. The faults identified led to injustice for Ms B, for which a remedy has been agreed.

The complaint

1. The complainant, whom I shall call Ms B, complains the Council sought to name an unsuitable school for her son, C, in an Education, Health and Care (EHC) Plan, and took too long to issue the final plan so she could appeal against it. She reports that in the interim as the named provision could not meet C’s Special Educational Needs, she had to fund suitable tuition for him privately and, because he was being home-schooled, he was unable to get GCSE results this year, and will now have to take his GCSEs alongside A levels. Ms B says the matter has caused stress and expense. She says that the Council’s actions created a legitimate expectation that it would reimburse tuition fees and that as a result she used her son’s savings to pay these costs.

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What I have investigated

2. I have investigated the actions of the Council in this matter which did not carry rights of appeal to the Special Educational Needs and Disability Tribunal (SEND) also known as the First Tier Tribunal (FTT).

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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)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. 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. (Local Government Act 1974, section 26(6)(a), as amended)
6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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)
8. 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)
9. 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

10. I considered all the information provided by Ms B about her complaint. I made written enquiries of the Council and took account of the information it provided in response.
11. I considered the relevant statutory guidance including the Special Education Needs Code of Practice 2015 and the Education Act 1996.
12. I have taken account of the Ombudsman’s guidance on remedies.
13. Ms B and the Council had an opportunity to comment on two drafts of this decision, and I considered all comments received.

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What I found

Legal and administrative information

14. The Council’s duties regarding the provision of education for children of compulsory school age are set out in the Education Act 1996. S19 states:
    “Each local authority shall make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them”.
15. In England, a child ceases to be of compulsory school age on the last Friday in June in the academic year in which he reaches the age of 16 or if he reaches 16 after the last Friday in June but before the start of the new school year.
16. A child with special educational needs 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 EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
17. The Special Educational Needs and Disability Regulations 2014 (Statutory Instrument 2014/1530), as amended apply. Regulation 13 sets out timescales for EHC plans.
18. When a parent asks a council with educational responsibilities to issue an EHC plan for their child, the council has 20 weeks to either: issue an EHC plan; or refuse to issue an EHC plan. In either case, a dissatisfied parent may appeal to the SEND tribunal.
19. Complaints of delay in the EHC plan process are separate from disagreements about whether the council should issue a plan, or about the content of the plan.

Background to this complaint

20. Ms B’s son, C, has medical conditions which impact on his access to learning. His seventeenth birthday was in September 2019, and he had left the school he had been attending in June of that year.
21. Prior to this, Ms B had been engaging with the Council to get an EHC plan for C. She asked the Council to assess him for an EHC plan on 10 October 2018. It agreed to do so on 14 November, and subsequently issued its decision not to issue an EHC plan on 15 January 2019.

The EHC plan and appeals

22. In March 2019, the Council was notified that Ms B had appealed to the SEND tribunal against its decision not to issue an EHC plan for C. On 12 August 2019, the parties reached agreement which was set out in a consent order. The agreement was for the Council to issue an EHC plan for C: it was to do so within five weeks. This meant that the EHC plan should have been issued by 1 September 2019. The Council issued a draft on 4 September, but did not issue the final plan until 20 November 2019.
23. Ms B did not agree with the content of the EHC plan and so she lodged a further appeal. Once again the parties reached agreement which was set out in a consent order dated 19 August 2020. The Council agreed to issue a revised EHC plan naming School X, which was acceptable to Ms B. It was to do this within two weeks: it did so on 4 September 2020, just outside the given timescale.

Analysis of the above points

24. There was a delay of some nine weeks by the Council in issuing the final EHC plan following the consent order of August 2019. That delay was fault. I will return to this point later in this statement.

The question of home tuition

25. Ms B complained that her son was out of education from September 2019. She considers the Council was liable for meeting his educational needs until he was able to start attending a suitable school. She had not agreed with the school named in the EHC plan issued in November 2019, and had appealed against this, as noted above. C did not attend the school named in that plan. An agreed school was not named until September 2020. C was therefore out of education in a school setting for a year.
26. Ms B arranged private tuition at home for her son. She reports that she had some discussion with a Council officer about financial support with the cost of this tuition and that the officer had confirmed he would be organising funds for this. Ms B met the Council’s officer and afterwards sent an email in which she asked the officer to “expedite the funding for paying for his private tutoring at home at the moment whilst the school issue is been looked at in terms of a school that caters for his needs academically and holistically”. In a subsequent email she referred to having had a telephone conversation with the officer and she forwarded information about tuition fees.
27. The Council’s position on this matter is that the officer had advised Ms B he would raise a query about such funding and then told her in a conversation that the Council would be unable to pay for it.

Analysis of the above points

28. The Council has no documentary evidence on its files relating to the actions of its officer in this matter. There should be notes of the meeting held with Ms B and of any subsequent conversations, for example. The lack of documentary evidence is fault.
29. As I have referred to in paragraphs 14 and 15 above, the Council was under no duty to provide education for C once he was beyond statutory school age where he did not have an EHC plan in place. Once a plan had been issued, in November 2019, naming a school, C could have attended that school. While Ms B’s disagreement as to the suitability of that placement is noted, that was matter for the SEND tribunal, and she exercised her right of appeal.

Injustice arising from fault

30. The delay of nine weeks in issuing the Council in issuing the final EHC plan following the consent order of August 2019 led to injustice for Ms B. But for the delay, the position reached in September 2020 when an EHC plan was agreed could have been achieved nine weeks sooner. As it was, Ms B has some uncertainty over the summer holiday period about what the arrangements would be for her son’s education for the new school year.
31. I have also considered whether the fault in record-keeping identified at paragraph 28 led to injustice for Ms B. While the Council had no duty to provide home tuition or meet such costs in this case, as I have noted there should have been records kept by the Council of the discussions held between Ms B and the Council’s officer about this matter. The only available records support Ms B’s view that she was led to believe that assistance with home tuition would be forthcoming. On 15 September 2019 she sent an email the officer referring to his home visit three days earlier, in which she said:
    “As per our conversation, please find attached here the various reports on [C] and tutor observations. Could you please expedite the funding for paying for his private tutoring at home at the moment whilst the school issue is been looked at in terms of a school that caters for his needs academically and holistically. Please contact ……….to update me as the progress of the tutoring funding”. Following this, Ms B received from the Council’s officer a timetable to complete with details of the home tutoring including costings, which she completed and returned. On 22 September 2019 she sent a further email, referring to another telephone conversation with the officer which had taken place two days previously, and submitting some more information on tutoring fees. The Council did not confirm it would not help with funding until 27 November, when it responded to her complaint about the matter. Taking account of the available evidence, I consider that on balance the Council’s communications with Ms B about this matter wrongly raised her expectations in the period September to November about the availability of help with the costs of the home tuition she arranged for her son.

Agreed action

32. In recognition of the injustice identified at paragraph 30 and 31 above, and time and trouble taken in pursuing her complaint, I recommended that within four weeks of the date of the decision in this case the Council:

• Issues Mrs B with a formal written apology; and
• Pays her £450.

33. I also recommended that within three months of the date of the decision on this complaint, the Council reminds relevant staff of the importance of record keeping, including the consideration of following up key conversations with service users in writing to minimise the risk of wrongly raising expectations.
34. I have noted that when it responded to Ms B’s complaint the Council apologised for the delay in issuing the EHC Plan and said it was making service improvements to address the delays. I make no further recommendations in this regard, except that the Council should, within three months of the date of the decision on this complaint, provide the Ombudsman with evidence of the service improvements implemented.
35. The Council has agreed to my recommendations.

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Final decision

36. I have completed my investigation on the basis set out above.

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Parts of the complaint that I did not investigate

37. I did not investigate the decisions of the Council in this matter which carried rights of appeal to the Special Educational Needs and Disability Tribunal (SEND).

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Investigator's decision on behalf of the Ombudsman