Summary: There is no delay in a review of Y’s Education, Health and Care Plan or in identifying schools for him. So we do not uphold Ms X’s complaint.

The complaint

1. Ms X complains Stockton-on-Tees Borough Council (the Council)
1. Delayed in completing a review of her son Y’s EHC plan in 2019
2. Delayed in taking or failed to take appropriate action to enable Y to return to school and was unclear about what education provision was on offer.
2. She also complains the Council:
1. Failed to make proper education provision for Y since 2010 and withdrew additional resource provision in 2016
2. Refused to provide school transport in 2016
3. Refused to issue an EHC plan in 2016
4. Issued an EHC plan in 2017 which said her son’s needs could be met in a mainstream school with support
3. Ms X says the Council’s fault means she has been paying for private tuition and her son has missed out on education in a school. She says she had no choice but to keep Y away from school as his health was adversely affected at his last school.

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What I have investigated

4. I have investigated complaints 1(a) and 1(b). My reasons for not investigating the other complaints are at the end of this statement.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. SEND is a tribunal that considers special educational needs. 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 do not direct changes to the sections about education, or name a different school because a person has a right of appeal to the tribunal on those parts of the EHC plan.
8. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)

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How I considered this complaint

9. I considered Ms X’s complaint to the Ombudsman and supporting documents and discussed the complaint with her. I also considered documents described in the next section of this statement.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

11. The law allows parents to educate their children at home (Education Act 1996, section 7).
12. A child educated at home is referred to by councils as being ‘electively home educated.’ In this statement, I call it ‘home schooling’. Councils must check the education the child receives is suitable.
13. The law and statutory guidance (the Special Educational Needs and Disability Code of Practice 2015 (COP) says:
• A parent has the right to request a particular school is named in an EHCP (Children and Families Act, section 38)
• A council should review an EHCP at least every 12 months. The review should focus on the child’s progress towards the outcomes in the EHC plan and consider whether outcomes and targets remain appropriate (COP 9.166, Children and Families Act section 44)
• A review should take place within 12 months of any previous review and a decision must be notified to the parent within 4 weeks and within 12 months of the previous review (COP 9.169)
• Reviews must take account of the parent and child’s views (COP 9.168)
• Where a child does not attend school, the council must prepare and send a report of the review meeting within two weeks. The report must set out recommended amendments to the EHC plan and any differences in attendees views on recommendations. If the plan needs to be amended, this process should start without delay and the Council must tell the parent within four weeks of the review meeting. (COP 9.177)
• Where a council maintains an EHC Plan, it (the council) must secure the specified special educational provision (SEP) for the child (Children and Families Act 2014, section 42(2))
• Where the council has satisfied itself that the parents have made suitable alternative arrangements for SEP to be made, then no duty falls on the council to secure the SEP. (Children and Families Act 2014, section 42(5) and COP 2015 9.131 – 6)

What happened

Background: events in 2017 to 2018

14. Y has an EHC plan since 2017. He has been home schooled for several years. The Council carried out a review of the EHC plan in July 2018. In its response to Ms X’s complaint, the Council said it issued an amended final EHC plan at the start of November 2018 and Ms X confirmed she received a copy.

Key events

15. An officer from the Council’s Education Improvement Service visited Ms X and Y at home in June 2019 to complete a home school monitoring visit. The record of that visit said ‘Ms X does not want Y to return to school unless he can access a place at a specialist provision. It noted Y was having assessments to determine if he had autism. There were no concerns raised about Y’s home schooling.
16. In June 2019, Ms X contacted the SEN team. She asked for a review of Y’s EHC plan and said he had just been diagnosed with autism.
17. The EHC panel considered Y’s case in July, but made no decisions about funding or provision. Senior officers noted consultations for a return to school were underway and Ms X’s preference was School A.
18. School A wrote to the Council to offer Y a place in July 2019, initially for eight weeks. The contact records indicate Ms X spoke to an SEN officer in July about funding for transport to School A and the officer explained funding had not yet been agreed.
19. There was an annual review meeting in July 2019, attended by Ms X, Y and two SEN officers. Ms X said she had been looking at schools for Y and she was not interested in three particular schools. The SEN officer asked Ms X to forward any health reports she wanted to be included in the EHC plan. Ms X said her preference was School B, but she knew there was a waiting list and so felt School A was appropriate. The SEN officer said the Council would consider Schools A and B in line with her wishes. She said if the Council found an appropriate school, they could look at amending Y’s EHC plan at a future review. The SEN officer noted the amendments Ms X wanted the Council to make to the plan. These included:
• Y’s recent diagnosis of autism and sensory processing disorder
• Reference to the home-schooling report (see earlier)
• Reference to two speech and language therapy reports.
20. The review noted Ms X’s preference was School A, but she was willing to look at other suggestions. Council officers noted Y’s recent diagnosis of autism and that they would ask the EHC panel for advice about his primary need.
21. After the review meeting, Ms X sent the Council her written advice about Y as part of the annual review. This set out Y’s health and education and social care needs from her perspective. She also sent in copies of two occupational therapy (OT) reports (one she commissioned privately and one from an NHS OT who worked with Y) and a report from a psychiatric nurse. Ms X said she wanted a school which had therapeutic input to support Y with anxiety and gave the Council a list of schools she wanted the SEN team to consider (as well as School A.)
22. The EHC panel discussed Y’s case in the middle of August. Senior officers noted Y’s recent diagnosis of autism and approved funding for a place at School A. They also agreed some historical information could be removed from Y’s EHC plan.
23. Ms X and an SEN officer spoke at the end of August. Ms X said she was no longer sure School A was her preference and she had since visited School C.
24. The Council sent Ms X a draft amended EHC plan at the end of September.
25. In September, the SEN team sent letters out to the schools Ms X had asked the Council to consider for Y. A complaints officer and Ms X spoke and Ms X said School A was not her preference and she was aware it had offered Y a place. The SEN officer said letters had gone out to all the schools Ms X requested and all but two (School A and D) declined to offer Y a place.
26. The Council issued a final EHC plan in October 2019. This set out Ms X’s views, Y’s special educational needs, his health and social care needs and outcomes. The plan described the special education provision Y needed. Section I noted Y was being home schooled, but Ms X had expressed a preference for him to return to an appropriate placement and the Council agreed and was consulting with schools. The plan listed all the reports and documents taken into account as evidence, including all the documents Ms X submitted.
27. Ms X visited School D in November 2019. She also complained to the Council about similar issues in her complaint to us.
28. At the end of November 2019, Ms X and the SEN officer also spoke on the phone about school placements and other issues. The SEN officer noted Ms X said she did not feel School D was an option for Y and that Ms X would not commit to School A either. Ms X emailed the SEN officer asking for clarification about transport, timetable and other issues for Y’s schooling. Ms X said she had spoken to the complaints team and wanted to ask the Council to fund private tuition for Y as an outcome to her complaint.
29. The Council’s first response to the complaint in December 2019 said:
• It had offered Y two school placements and she needed to tell the Council which one she wanted Y to attend, within two weeks.
• She had the right to home school Y. There was no obligation on the Council to fund private tuition.
30. In January 2020, the SEN officer wrote to Ms X following the complaint correspondence. The letter explained the Council was offering Y places at Schools A and D. It explained the schools could not keep places open indefinitely and she had not confirmed her preference and needed to do so within two weeks. The letter said if Ms X did not respond, the Council would assume she wanted to continue home schooling Y and would not pursue the school placements.
31. The Council’s second response to Ms X’s complaint said it was satisfied she had received clear information about the education it had offered.

Was there fault?

The Council delayed in completing a review of the EHC plan in 2019

32. There is no fault by the Council and I do not uphold this complaint.
33. The records indicate the previous review meeting was in July 2018. Ms X contacted the SEN team in June 2019 to say Y was going to receive a diagnosis of autism. The SEN team arranged and convened a review meeting in July 2019. This was within the 12-month timeframe specified in section 44 of the Children and Families Act 2014 and so there is no fault. The Council issued a draft amended EHC plan in September and a final plan in October, which took into account the reports Ms X wanted the Council to consider and the changes she wanted to the plan. While the four week timeframe for notifying Ms X of the proposed changes to the EHC plan set out in paragraphs 9.169 and 9.177 were not quite met, the delay was slight and the injustice insignificant because Ms X received a final EHC plan which reflected the changes discussed in the review meeting.

The Council delayed in taking or failed to take appropriate action to enable Y to return to school and was unclear about what education provision was on offer.

34. There is no delay or failure by the Council to secure school placements for Y and the schools on offer were made clear to Ms X. So I do not uphold this complaint.
35. The review of the EHC plan in July 2019 noted Ms X was ready to consider Y returning to an appropriate school and expressed interest in a number of schools, including Schools A and D. The Council agreed funding for School A in August 2019 and it offered Y places at Schools A and D after consulting with the schools Ms X had identified in September and October. I am satisfied Ms X was made aware verbally and in correspondence that Schools A and D were formal offers.
36. There is no record of Ms X responding in writing to the Council’s letter of January 2020 and the records of her conversations with SEN officers indicates she had changed her mind about Schools A and D and wanted to continue with the arrangements she already had in place for Y’s education.
37. There is no fault in the Council not providing the special educational provision set out in Y’s EHC plan because it was satisfied with Ms X’s home schooling arrangements. This is in line with section 42(5) of the Children and Families Act 2014.

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Final decision

38. There is no delay in a review of Y’s Education, Health and Care Plan or in identifying schools for him. So I do not uphold Ms X’s complaint. I have completed the investigation.

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Parts of the complaint that I did not investigate

39. I did not investigate complaints 2 (a) to (d) because these complaints are late and there is no reason Ms X could not have complained to us at the time. Some of the complaints also had rights of appeal to the SEND tribunal and it was reasonable for Ms X to use the legal process to appeal to the tribunal.

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Investigator's decision on behalf of the Ombudsman