Summary: the complainant, Mrs X, complained the Council failed to properly manage the education provided for her son Y leading to delay in the right to appeal an EHC Plan and discuss possible funding for alternative provision. The Council accepted it failed to act without delay, apologised and offered a remedy. We found the Council at fault causing injustice for which the Council will apologise and pay £1,500.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained the Council delayed the transition from a Statement of Special Educational Need to an Education, Health and Care Plan (EHC Plan). Mrs X says the Council also failed to properly consider alternative provision or funding Education Other Than at School (EOTAS) or support Elective Home Education for her child, Y. Mrs X says the Council did not offer a personal budget from which she could have sourced alternative provision or therapies.
2. Mrs X says this has led to delays in provision, and so she had to fund more provision than she may otherwise have needed. Mrs X wants the Council to provide a financial remedy, an opportunity to speak face to face with officers and to look at its assessment procedure for home education for children.

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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. 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)
5. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
6. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the Council reached the decision. (Local Government Act 1974, section 34(3), 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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
9. 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)
10. 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

11. In considering this complaint I have:
• Contacted Mrs X and read the information presented with her complaint;
• Put enquiries to the Council and reviewed the information sent in response;
• Researched the relevant law, guidance, and policy;
• Shared my draft decision with Mrs X and the Council and reflected on the comments both made on that draft decision before reaching this final decision.

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What I found

The law and guidance

12. Parents with ‘parental responsibility’ have a duty to ensure their children receive an education. Councils may help, but the primary responsibility lies with parents.
13. The Education Act 1996 (the Act) sets out a council’s duties to provide education. The Children and Families Act 2014, the SEN Code of Practice (the Code) and associated Regulations and the ‘Elective Home Education’ Guidance 2019 guide councils on how to meet their duties under the Act.
14. Under the Act, councils had to prepare a Statement of Special Educational Need for children with special educational needs. The Statement set out the details of the special educational provision needed. From 2015, the Children’s and Families Act 2014 replaced Statements with Education Health and Care Plans (EHC Plan).
15. Councils had to complete the transfer of children from Statements to EHC Plans by 1 April 2018. To convert a Statement to an EHC Plan, councils had to carry out a Transfer Review and an EHC needs assessment.
16. A Transfer Review replaced the Annual review in the academic year the council intended to transfer the child. That should have happened within 12 months of the last annual review. The Code (of 2015) and transition guidance says councils must finalise an EHC Plan within 18 weeks of the Transfer Review. The Council commissioned a social enterprise company to provide some children’s services for the Council. The Council holds legal responsibility for providing these services.
17. Under the Act councils must identify children who are not registered pupils at a school and are not receiving suitable education otherwise. The government issued guidance in April 2019 on how to respond to children educated at home who may not be receiving a suitable education.
18. 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 does not have a duty to provide the provision in the EHC Plan.
19. 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.
20. The Code says councils should not assume that because the provision made by parents is different from that which a school would provide, the provision is necessarily unsuitable.
21. The ‘Elective Home Education’ Guidance suggests councils encourage parents to discuss their decision to home educate and offer support and advice to ensure children receive suitable education at home. The Guidance also advises on how councils should ensure home educated children receive suitable full-time education. Councils should consider using their powers to help parents provide suitable provision, including funding for special educational needs of the home-educated child where appropriate

Ombudsman report and audit of EHC Plans

22. In January 2020 we issued a public report into our investigation into complaints about the Council’s special educational needs service. We identified failings including delays in assessing children and young people and issuing their EHC Plans; delays in provision to meet the assessed needs and poor record keeping.
23. In line with the recommendations set out in that report, the Council commissioned an audit of all its EHC Plans. The auditors issued a report in May 2020 on its review of the cases of 1,494 children. The audit found similar failings identified in our report for 37 children with EHC Plans, including Y. The auditors found the Council took more than three years to complete Y’s EHC Plan and took too long to prepare reports. The auditors found failings in communications with Y’s parents resulting in denying Mrs X any appeal rights until October 2019 and denying her any support with elective home education.
24. The auditors found the Council had not explored offering a personal budget for Y. They recommended the Council complete a review of the EHC Plan by 30 June 2020 and address the parents’ application for a personal budget.

What happened

25. Mrs X says Y has complex, wide ranging needs which Mrs X says the Council failed to meet. Mrs X says since 2012 the Council has failed to provide support for Y. Mrs X says the family lost all confidence in the Council’s ability to assess and provide for Y’s needs. The family withdrew from the formal procedure in 2020.
26. In 2013 Mr and Mrs X wrote to the Council saying they would educate Y at home. Having registered Y at a school in 2014, Mr and Mrs X wrote in 2015 to say they would electively home educate Y and have done so since then. They provide mentors and therapy provision which they say works well for Y. Each year Y receives a visit from an officer from the Council’s Education Welfare Service. The officer reviews the elective home education Y is receiving. Each year the Council found the elective home education provides Y with a suitable education.
27. In January 2017, the Council reviewed Y’s special educational needs as part of the transition from a Statement to an EHC Plan. The Council gathered information from professionals including an educational psychologist and occupational therapist as part of its assessment of Y’s needs.
28. The Council issued a draft EHC Plan in March 2018. It says it believed a return to a school setting would best meet Y’s needs. The Council says in its view home education long term will not best meet Y’s needs. The Council consulted with schools between June and August 2018 to identify a suitable placement to meet Y’s needs. After representations, the Council issued an amended draft EHC Plan in December 2018.
29. Meanwhile, Mrs X asked the Council to consider offering a personal budget to the family to fund alternative education and therapies. The Council did not provide the family with information on personal budgets, so this did not continue.
30. The Council issued further draft EHC Plans in January and May 2019 with the latter naming a specialist school place for Y. In October 2019 the Council emailed Mrs X saying it had finalised the EHC Plan (sent in May). In January 2020 the named specialist school decided on meeting Y (at Mrs X’s request), now aged 14, it could not meet Y’s needs. Mrs X says the Council had no further alternatives.
31. After the Council issued the final EHC Plan Mrs X elected for mediation rather than exercise her right of appeal to the SEND Tribunal. Mediation began in February 2020. The Council says the mediation considered moving Y to Education other than at School (EOTAS) from elective home education if it could find a suitable provider. Mrs X disputed she had electively home educated Y. Rather she said she had no choice but to do so.
32. Within mediation the Council says it repeated its view the provision in the EHC Plan would meet Y’s wider educational needs. Any funding through a personal budget would depend on the Council measuring the benefit of the programme this funded. That meant evaluating it by measuring results. The Council says Mrs X said a school programme could not meet Y’s unique learning style. Mrs X disputes the Council’s account of mediation meetings.
33. The Council says it did not receive any formal written proposal for a programme it could fund through a personal budget. The Council says Mrs X and Y believed Y did not need a formalised guided learning model such as those used in schools. Without any proposal for recording progress the Council says it could not offer a personal budget. It says it must be able to measure progress. Mrs X says the Council never explained this until after she withdrew from the EHC Plan.
34. To provide support for Y the Council offered to explore with an independent living provider funding provision through a personal budget. The Council says Mrs X refused to consent so it could not follow up this alternative provision. Mrs X disputes the Council’s view of these events.

Review following our report and audit

35. The Council says it reviewed the EHC Plan in June 2020 as recommended by the auditors. It says it discussed providing provision funded by a personal budget, but Mrs X asked the Council to cease maintaining the EHC Plan. The Council agreed resulting in a further right of appeal. Mrs X says the Council discussed exiting the EHC Plan, it did not review the EHC Plan.
36. In responding to my enquiries, the Council says it accepted at both stages of its complaints’ procedure, that it failed to conduct annual reviews of the EHC Plan. The Council offered a remedy of £750 in recognition of the impact of this failure and delay in the transition to an EHC Plan on Mrs X and Y.
37. The Council says it should have considered EOTAS and funding therapy immediately after the specialist school named in the EHC Plan withdrew (January 2020). It says it would likely have offered funding therapy for Y and tutoring in English and Mathematics for 8 hours per week.
38. Mrs X says the Council failed to explore fully the possibilities of funding EOTAS or provide funding for other services for Y as an elective home educated child. Mrs X says Council staff did not know about EOTAS and believed it only relevant for disabled children. Mrs X says this resulted in Y receiving no support from the Council. Mrs X says the Council has not sought to understand or discuss with her the merits of the programme used to support Y or considered his views. Mrs X says that Y has not received professional therapy or enough mentoring to meet his needs because the Council has failed to properly assess those needs and research what provision best meets them. Mrs X says the Council has dismissed Mr and Mrs X’s views, and Y’s views on his education. Mrs X says the Council needs to reassess how it assesses and provides for home education and EOTAS.

Analysis – was there fault leading to injustice?

39. My role is to consider how the Council managed the provision of suitable education to Y in compliance with the law and Codes of Practice. If the Council acted with fault, I must consider what impact that has had and what the Council should do to put it right.
40. The Local Government Act 1974 (as amended) gives us powers to investigate complaints but also places some limits on those powers. Parents may appeal the contents of the EHC Plan to the SEND Tribunal. The Tribunal may make a binding order on the merits of the parties’ submissions whereas we do not have that power. Therefore, it is reasonable to expect parents to exercise that right of appeal. The law says I may not investigate a complaint about assessments for, or content of, an EHC Plan. This includes decisions by the Council to name in the EHC Plan a school, a provider of EOTAS, or home education.
41. The Council says Mrs X elected to home educate Y. By 2017 Mrs X had established a pattern of elective home education inspected by the Council . Therefore, I accept Y received elective home education limiting the Council’s duty to provide the provision in his EHC Plan
42. The law limits my investigation to considering if the Council acted with fault in:
• The time taken to transition to an EHC Plan;
• Considering whether to provide financial support for Y’s SEN needs including therapies to support his elective home education plan or offer EOTAS.
• Reviewing whether the elective home education programme provided Y with a suitable education.
43. I must also consider if the remedy offered by the Council is enough to address any injustice arising from the fault found by the audit and in my investigation.
44. For parents who elect to home educate the Council should have both a policy and procedure for communicating with the parent. This should include writing to the parent explaining their decision would limit the Council’s duty to provide support. It should tell them about the financial burden of education on the parent. The Council should explain it has no duty to provide the SEN provision in the EHC Plan. The Council should also explain how it will decide if the education provided is suitable for the child usually by assessing the education programme each year.
45. The information provided by the Council shows it shared information with Mrs X as its policy developed and it reviewed the programme provided each year.
46. The Code is clear, the Council should have transferred Y to an EHC Plan within 18 weeks. It took nearly three years. It should also review EHC Plans every year. The Council did not transfer Y to the EHC Plan without delay or review it every year. The Council missed this annual opportunity to discuss other choices such as funded support for Y’s special educational needs or potential EOTAS.
47. At the start of the review resulting from our report and audit the Council should have set out in a clear statement the limits of that review. It should have clearly stated it did not have a duty to provide an electively home educated child with the provision set out in the EHC Plan. Further it should have made it clear it would need to evaluate any support it funded. The failure to make that clear at the start resulted in mixed messaging and some confusion which I find a fault.
48. Therefore, I find the Council at fault for:
• the delay in the transition from Statement to EHC Plan and missing annual reviews;
• failing to clearly set out its duties towards a child in receipt of elective home education;
• not considering and exploring without delay what support it may offer Y including EOTAS.
49. In reaching a view on the injustice arising from the faults I must consider what duty the Council had to provide alternative provision and support. It is not under a duty to provide the provision in the EHC Plan but may do so at its discretion. The Council says but for the faults it would not have offered provision because it could not identify a programme acceptable to both the Council and Mrs X. I find the faults caused avoidable confusion and distress. I have reflected on the remedies given in similar cases arising from our report and audit and the lack of any duty to provide provision in these circumstances.

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Agreed action

50. To remedy the injustice arising from the faults identified the Council agrees to within four weeks of this my final decision:
• Apologise in writing to Mrs X and separately to Y;
• Pay Mrs X on Y’s behalf £1,000 for the faults identified and;
• Pay Mrs X £500 in recognition of the avoidable time, inconvenience, and stress.

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Final decision

51. In completing my investigation, I find the Council acted with fault leading to injustice for which it has agreed a proportionate remedy.

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Investigator's decision on behalf of the Ombudsman