Summary: the complainant, Mrs X complained the Council failed to provide any education for her son for a full year leading to him falling behind his peer group. Mrs X complained the Council delayed passing all relevant records to the new authority when she moved into another area delaying her son from gaining help more quickly. We found the Council acted with fault and it has agreed to a payment and other measures in recognition of those faults.

The complaint

1. The complainant, whom I refer to as Mrs X, complains the Council failed to honour its commitment to provide her son, Y, with bespoke educational support from September 2019. Mrs X says the Council failed to respond to and consider her application for a personal budget to provide two hours private tutoring a week.
2. Mrs X further complains the Council failed to provide a copy of Y’s EHC Plan to the education authority for the area to which the family moved in June 2020.
3. Mrs X says that when she moved to the new area in June 2020 Y had not received any education for a school year. This led Y to falling behind in his educational progress and to experience a decline in his interest in learning. The delay in transferring his records added to delay in his reassessment.

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The Ombudsman’s role and powers

4. 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)
5. The Council is responsible for making sure that arrangements set out in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

6. If 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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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. In considering this complaint I have:
• Contacted Mrs X and read the information she has presented and researched our previous decisions upholding complaints;
• Put enquiries to the Council and reviewed its response;
• Researched all relevant law, guidance, and policy and our guidance on remedies when considering the Council’s offer to resolve the complaint.
• Shared with Mrs X and the Council my draft decision and reflected on their comments before making this final decision.

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What I found

The law and guidance

10. The Children and Families Act 2014 sets out councils’ duties to support a child with an EHC Plan. Government guidance such as the SEN Code of Practice 2015 supports the Act.
11. Councils must under the Education Act 1996 identify children who are not registered pupils at a school and are not receiving suitable education otherwise. The government has issued guidance in April 2019 on how to respond to children educated at home who may not be receiving a suitable education.
12. Under Section 19 of the Education Act 1996 councils must provide alternative education provision where a child is out of school or placement subject to qualifying criteria.
13. Councils do not regulate home education. However, they should enquire into what education the parent provides to comply with the duty to ensure the child receives a suitable education. Councils should have a policy on elective home education setting out how the Council will engage and communicate with parents.
14. Parents may choose to home educate a child who has special educational needs. Where a parent withdraws a child for elective home education, the Council no longer has a duty to provide the provision in the EHC Plan.

What happened

15. Mrs X says her son Y had an EHC Plan setting out provision to meet his needs issued in May 2019. In July 2019, the Council says Mrs X contacted officers asking about home education, but it says she did not ask the Council to consider providing it. However, in commenting on my draft decision Mrs X says she told the Council in January 2019 Y would not return to his placement. There is no record of Mrs X confirming in an email or in writing that she now intended to home educate Y.
16. Y’s EHC Plan of May 2019 says that Y will attend education other than at school. The Council arranged an alternative education provider, Group W to provide this support. The EHC Plan gave Y 25 hours provision at Group W each week. Mrs X says this in fact started as five hours a week, increasing to seven and a half hours.
17. At the annual review in June 2019, the review confirmed Group W remained a suitable placement for Y. The review recommended the Council consider Mrs X’s application for a personal budget to fund transporting Y to and from Group W. It also recommended a new Educational Psychologist assessment around self esteem and self-worth.
18. In July 2019 Mrs X told Group W that Y could not attend his sessions. A new educational psychologist saw Y in August 2019. On 5 September 2019, the educational psychologist issued his report on Y’s needs and progress.
19. The Council says that in October 2019 Group W told the Council Mrs X had withdrawn Y from their service in September 2019 and would update them when she felt he could return. Group W says it had not heard anything further. The Council says in October 2019 its Complex Casework Forum agreed the Council should seek an independent school to meet Y’s needs from September 2020. Although the Council says it identified several possible schools, due to administrative oversight and changes in staff the Council did not approach any of the schools. The Council says it did not take more action on securing a school place. In responding to Mrs X’s complaint, the Council offered a payment and an apology for this failing.
20. Mrs X’s application for a personal budget to fund Y’s transport had not progressed but by now he did not attend Group W. In February 2020, the Council says it received an application from Mrs X asking for a personal budget to fund one hour of Mathematics and one hour of English tuition a week. Mrs X also asked for a laptop and Railcard for Y. The Council says regrettably its SEND Operations Team overlooked the application. Applications for personal budgets the Council says usually take place at the time the Council issues an EHC Plan or conducts a review. Mrs X did not make her application at either of these times, however, the Council recognised it should have responded to it.
21. Mrs X says the Council did not offer any further education for Y and failed to hold an annual review of his EHC Plan due in 2020. Mrs X says Y missed Year 9 completely.
22. The Council recognises it did not hold an annual review of Y’s EHC Plan in 2020. In its response to my enquiries, the Council says Mrs X elected to home educate Y in September 2019 when she withdrew Y from Group W. Therefore, the Council believed it had in place suitable education as set out in the EHC Plan and review of May and June 2019.
23. The annual review of Y’s EHC Plan in 2020 did not take place and the Council accepts it should have conducted an annual review before the family moved out of the county.
24. However, in its response the Council also says that once the Council knew of Y’s withdrawal from Group W (reported in October 2019) there were:

“…regrettable delays and errors in what should have happened next, for which the Council sincerely apologises.”

25. In June 2020 Mrs X moved out of the county to secure Y a better SEN service from another council. On 15 June 2020 she asked the Council to send on the papers to the new council so it could conduct Y’s annual review and assess how it would meet his needs. By August 2020 Mrs X says the Council had still not sent Y’s records to the new education authority. This delayed any assessment to prepare provision for the new academic year.
26. Mrs X says the delays and failure to provide any alternative provision to Group W means Y did not receive any education provision for a full academic year. While Mrs X wanted to explore home tutoring, she had expected the Council to provide support, but it had failed to communicate with her or follow up why she had withdrawn Y from Group W. Mrs X says this has had a significant impact on Y and he fell behind his peers in his development and lost interest in learning.

Analysis – was there fault leading to injustice?

27. My role is to consider how the Council met its duties and decided what to provide for Y. If I find the Council acted with fault, I must consider what impact that had and what the Council should do to address that impact.
28. Where a child stops attending either school or alternative provision such as education other than at school, the Council should quickly follow up the child’s absence. It should identify if the absence is due to illness, or other reason, what alternative provision may suit the child and discuss that with the parents. The Council should ensure the child is receiving a suitable education even if the parent elects to home educate the child. Where a parent says they intend to home educate the child the Council should ask for confirmation in writing. The Council should provide information (again in writing) to the parent explaining their decision would mean they must self-fund the education. It should explain the Council’s limited duty to ensure the child receives a suitable education from the parent. Where a child transfers to another authority the Council should speedily send that authority the child’s records to prevent delay in that authority’s assessment and provision. Councils should review EHC Plans every year. Where necessary councils should speedily identify and commission placements in schools or with other providers.
29. The information the Council has provided shows it did not follow this path. The Council failed to provide support, respond to applications for help or identify a school place for September 2020. The Council did not offer support or review the EHC Plan after September 2019. Therefore, it cannot place the responsibility for Y’s educational support between September 2019 and September 2020 solely on Mrs X. There is no record of Mrs X formally electing to home educate. When she applied for funding for tutoring in February 2020 that should have triggered a review of Y’s support, and a proper response. It did not. The Council failed to respond to the application.
30. I find the Council acted with fault. It failed to meet is legal duties to ensure Y received a suitable education, respond to applications for support and to review the EHC Plan. The Council also failed to act with due speed when told Y had transferred to another education authority.
31. Y has a right to education. I find the Council has failed to ensure he received that education. The impact on Y is significant. When recommending a remedy, we try to place people in the same position they would have been but for the fault. That is not possible here because Y has missed a year’s education support. Therefore, we must consider a symbolic payment in recognition of the harm caused to Y’s educational progress and interest in learning. Already facing difficulties Y’s engagement with his education has suffered because of the failure to properly manage his support.
32. Our ‘Guidance on Remedies’ suggests payments of between £200 to £600 for each month a child has missed provision depending on how much provision a child could have engaged with, any support provided by the parent and other action taken. The Council has recognised its failings, offered an apology and a payment of £500. I find that does not fully recognise the impact on Y.

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Agreed action

33. To address the significant injustice to Y the Council agrees to within four weeks of my final decision:
• Apologise in writing both to Mrs X and separately to Y;
• Pay Mrs X £300 in recognition of the distress and inconvenience the faults have caused her;
• Pay to Mrs X for Y’s benefit £5,400 (£600 for each month of missed provision) for the academic year Y missed plus £250 for the delay during the summer of 2020 when the new authority could have assessed him and prepared for his provision from September 2020;
• And within three months of my final decision carry out an audit of children of compulsory school age with EHC Plans, not on a school roll and who have not attended any school or a provider of education other than at school, for more than 15 school days and where alternative provision is not being supplied. This will ensure there is an assessment of their educational needs and how these are being met.

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Final decision

34. In completing my investigation, I find the Council at fault. I consider the remedy including a payment totalling £5,950 the Council has agreed as a proportionate way of addressing the injustice to Mrs X and Y.

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Investigator's decision on behalf of the Ombudsman