Summary: Mrs B’s child has an Education, Health and Care plan. She complained the Council failed to take appropriate action in respect of her child’s education when they were unable to attend school for health reasons. We find there was fault by the Council in the EHC plan process. The faults identified led to injustice, for which an apology and financial remedy have been agreed.

The complaint

1. The complainant, whom I shall call Mrs B, has a child, C, who has an Education, Health and Care (EHC) plan. Since moving to the Council's area in October 2018 C has been unable to attend school for health reasons. Mrs B complained the Council failed to provide education for C in accordance with s19 of the Education Act 1996, and failed to review C's EHC Plan as it should have done.
2. Mrs B says that because of these failings C missed education he was entitled to.

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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. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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

9. I considered all information provided by Mrs B about her complaint. I made written enquiries of the Council and took account of the information it provided in response.
10. I considered the relevant statutory guidance including the Special Educational Needs and Disability Code of Practice 2015 (‘the Code’), and the Education Act 1996.
11. I have taken account of the Ombudsman’s guidance on remedies.
12. Mrs B and the Council had an opportunity to comment on a draft of this decision. I considered all comments received before making this final decision.

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What I found

Legal and administrative information

13. 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”.
14. 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 Council is responsible for making sure that arrangements specified in the EHC plan are put in place.
15. The Special Educational Needs and Disability Regulations 2014 (Statutory Instrument 2014/1530), as amended apply. Regulation 13 sets out timescales for EHC plans.
16. 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, which carry rights of appeal to the Special Educational Needs and Disability Tribunal (SEND).
17. When a child or young person with an EHC plan moves into a different local authority’s area, the EHC plan will need to transfer to the new local authority (LA). The legal requirement for the new LA to start making the provision in the EHC plan is set out in Regulation 15 of the Special Educational Needs and Disability Regulations 2014. There is also guidance for LAs in the Code.

What happened in this case

The move to the Council’s area

18. Mrs B and her son moved into the Council’s area in October 2018. On 23 October 2018, the Council received notification of the move from the council in the area the family had moved from, and the following day received a copy of C’s EHC plan dated 23 October 2018. The Council also received some supplementary information about C’s health, referring to his diagnosis of chronic fatigue syndrome, and his school attendance which at that point was given as 10%. Comments from C’s paediatrician in June 2018 for the EHC plan noted C was only accessing home tuition for one hour a week, but the aim was to work towards one hour’s education a few times a week initially gradually increasing to one hour daily, and then by 15 minutes each day. At the time of the move, C had not attended school for six months, had been having one hour a week home tuition, and had been referred to the home/hospital school service. The EHC plan named a primary school which was to coordinate the provision and have primary responsibility for ensuring its delivery.
19. Following this the records show there was communication between the Council and Mrs B, who confirmed she had visited two schools and by 4 December had selected the one she felt would best meet her child’s needs and was waiting to speak to the headteacher. The Council said it would be contacting C’s paediatrician to confirm the child was physically well enough to attend school, and said that if not then provision via the home and hospital team could be accessed.
20. C was enrolled at the school Mrs B had chosen with effect from 9 January 2019. The Council issued the notice to amend the EHC plan on 28 January, followed by the amended EHC plan on 14 February 2019. At this point Mrs B had the right of appeal to Tribunal if dissatisfied with the EHC plan as issued.
21. Under the law, the transfer of an EHC plan happens either on the day of the move or within 15 working days of the new LA becoming aware of the move, if later. The new LA then has six weeks to notify the parent or young person that the EHC plan has been transferred, and to let them know when it is going to review the EHC plan.
22. In this case Council became aware of the move on 23 October 2018. 15 working days from then was 13 November, and the six-week date the 25 December 2018. So, it is clear there was some delay here, which was fault. Mrs B subsequently made this point in her complaint to the Council, but the Council did not address it in its response, which was further fault. However, the school Mrs B wanted was named in the EHC plan and C was on roll from the start of the spring term. The injustice caused by these faults was therefore limited.

Review of the EHC plan

23. The new LA must review the EHC plan within either 12 months from the EHC plan being made or last reviewed, or three months from the date of the transfer, whichever is the later.
24. In this case there was a meeting at C’s school on 27 March 2019. However, Mrs B considers this was not a formal review meeting but a meeting to discuss C’s attendance issues. The notes from that meeting support that, stating:
    “Reason for meeting: [C] joined [the School] in January 2019. The main concern is [C]’s low attendance, currently 27.5% of the agreed attendance of five afternoons per week. School staff are aware that [C] has medical issues which impact on his attendance, however the school needs support from other professional bodies to understand his medical needs and how they may impact on his learning. The school needs to ensure that the EHCP provides for [C]’s needs”.
25. In its responses to Mrs B’s complaint the Council referred to this meeting as an annual review meeting, acknowledging it was ‘late’ as the previous annual review had been on 11 March 2018. However, in response to my enquiries the Council has said it was not a formal annual review but a meeting to discuss C’s medical and health needs and attendance.
26. There was fault by the Council here, both in failing to be clear and in failing to conduct an annual review in accordance with the statutory process. The meeting described by the Council as an annual review took place on 15 July 2019, more than four months late. I will address the issue of injustice arising from this fault later in this statement.
27. Mrs B also complained that she was ‘effectively barred’ from the March meeting because she felt unable to attend at the same time as her ex-husband. The Council has said however that at the time of the meeting it was unaware of the need for separate meetings. It received an email from Mrs B after the meeting, on 1 April, about her non-attendance, in which she said she did not know if the Council had been made aware of her reasons. While it seems Mrs B advised the school, as she refers to the headteacher having a letter to this effect, I have not seen evidence that Mrs B told the Council of her concerns prior to the meeting. And, as set out in paragraph 6 above, the actions of the school are not in the Ombudsman’s jurisdiction.

School attendance and consideration of alternative provision

28. At the meeting on the 27 March 2019 the view of the paediatrician was that C was fit enough to be in school starting with three half-days a week. The Council was entitled to rely on that professional health advice, and the school remained responsible for C’s education.
29. However, on 13 June 2019 the school contacted the Council’s school attendance service advising that C’s attendance had declined, and he had not been in school since 16 May 2019. But those absences had been authorised by the school, and so the threshold for referral to the pupil attendance support team had not been met.
30. Having taken advice, the school advised Mrs B that C’s absence would, going forward, be marked as unauthorised and a referral made to the Council’s pupil attendance support team. Mrs B reports she was fearful that she would face prosecution for failing to ensure C’s attendance at school, and so, on 17 June 2019, she made the decision to remove C from the school roll and to electively home educate (EHE).
31. Where a parent withdraws a child with an EHC plan from school to home educate them then the Council no longer has an obligation to provide the special educational provision in the EHC plan. This is because the parents are deemed to be making their own suitable alternative arrangements. Councils have a power, but not a duty, to provide support, for example funding or therapy at home. The Code states that LAs should fund the SEN needs of home-educated children where it is appropriate to do so.
32. Mrs B considers the Council should have provided some support for her son’s education at home, for example online learning. The Council has referred to published information in its Local Offer which says: “We do not provide funding, when you decide to home educate you take on responsibility for all the costs”. However, the Council should not apply a blanket policy: it should consider whether there are grounds to exercise discretion in the specific circumstances of the case. The fettering of discretion is fault.

The current position

33. On 16 July 2020 Mrs B formally requested reassessment of C’s SEN. The Council issued a draft on 2 November 2020 followed by the final amended EHC plan on 21 December 2020. The process should not have taken longer than 20 weeks and the delay was therefore fault. However, the final EHC plan named Mrs B’s secondary school of choice and the Council is now working with Mrs B to arrange a meeting with the home and hospital service so that C will be able to access appropriate education, for example via tuition at home.

Analysis – faults and injustice

34. As identified above, there were several faults by the Council in this case. There were delays in process following the transfer-in of the EHC plan from outside the Council’s area; a failure to review the EHC plan within 12 months of March 2018; a failure to acknowledge in the complaint response that the meeting in March 2019 was not an annual review meeting; and a failure to consider the power to provide funding support once C was no longer on the school roll. In addition, since the events complained of there was a further delay in process following the request for formal reassessment.
35. Mrs B has been put to some time and trouble seeking to have these matters resolved. The principal injustice however arises from the delay in completing the annual review in 2019. If the formal annual review process had been followed at the appropriate time, the prescribed steps would have been followed, including information gathering from parents and from professionals, to be circulated two weeks before the meeting, and the circulation of a report afterwards, with notification of the decision on the review within four weeks of the meeting. Because that should have happened in March but did not happen until July, and C had stopped attending any school provision in the interim, there must be uncertainty about whether some alternative support or intervention might have been deemed appropriate and offered if the correct process had been followed in March. As it was, there was a drift of some four months, by which time Mrs B had removed her son from the school roll.
36. Mrs B has raised concerns about the administrative process followed by the Council in respect of the July 2019 meeting, which she considers mean that the meeting was not a properly conducted annual review. While a failure to follow process would be fault, I do not need to consider this further because the principal injustice identified in this case, referred to above, flows from the failure to conduct an annual review in March 2019.
37. The later delay, following the request for reassessment in 2020, likely contributed to a delay in C’s access to some provision through the home and hospital service.

Agreed action

38. In recognition of the injustice identified in this case, I recommended that within four weeks of the date of the decision on this complaint, the Council:

• Issues Mrs B with a formal written apology; and
• Pays Mrs B £500.

39. In addition, I recommended that within three months of the date of the decision complaint the Council reminds relevant staff about its power to provide funding support when a child is not on a school roll, and the need to document decision- making to evidence the exercise of discretion as appropriate.
40. The Council has agreed to my recommendations.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman