Summary: Miss X complained about the Council’s decisions and actions between November 2018 and June 2020 when it refused and then delayed issuing her son, F with an Education, Health and Care (EHC) Plan. The Council did not issue F’s final EHC Plan in line with statutory timescales. However, this did not cause F a significant injustice. The Council was not at fault when F did not receive provision in line with his plan during September 2020. We did not have jurisdiction to investigate the Council’s actions and decision around whether to assess F or to issue him with an EHC Plan between November 2018 and January 2020. This is because Miss X appealed to a tribunal about the matters.

The complaint

1. Miss X complained about the Council’s decisions and actions between November 2018 and June 2020 when it refused and then delayed issuing her son, F with a Education, Health and Care (EHC) Plan. Miss X said she was forced to home educate F during this period which meant he did not receive appropriate education to meet his Special Educational Needs (SEN) during these periods.
2. Miss X also complained that the Council failed to ensure F received the provision set out in his EHC Plan during September 2020.

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What I have investigated

3. I have investigated the circumstances around Miss X electively home educating F in 2018, delays in issuing F’s final EHC Plan and whether F was receiving provision in line with his plan during September 2020.

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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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to Covid-19”.
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 spoke to Miss X about her complaint and considered the information she provided.
11. I considered the Council’s response to our enquiry letter.
12. I considered relevant law and guidance including:
• The Children and Families Act 2014
• The Special Educational Needs and Disability (SEND) Regulations 2014.
• The SEND (Coronavirus) (Amendment) Regulations 2020
• The Coronavirus Act 2020
13. Miss X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Education, Health and Care Plan (EHC) Plan

14. Children with complex needs may require an Education, Health and Care (EHC) Plan. This is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
15. Councils are responsible for making sure all the arrangements named in the EHC Plan are put in place.
16. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the EHC Plan. This duty is non-delegable. The local health care provider will have the duty to deliver the health care provision.

Timescales for EHC need assessments and preparation of the EHC Plan

17. If a parent or school believes a child needs an EHC Plan, it can ask the Council to carry out a needs assessment to determine what special educational support the child needs.
18. Councils can decide not to carry out a needs assessment. It must let the parent know of this decision within 6 weeks of the request being made. The parent can appeal the Council's decision to the tribunal.
19. If the Council decides to carry out a needs assessment, or is directed to do so by the tribunal, the statutory guidance states the process from the date of the decision to carry out the assessment to the issuing of the final EHC Plan must take no longer than 14 weeks.

The SEND Tribunal

20. Certain SEN decisions have a right of appeal to the SEND Tribunal. We would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect the person to appeal.
21. Some of the decisions which are appealable and usually out of our jurisdiction include:
• A council’s refusal to carry out an EHC assessment or refusal to reassess.
• A council’s refusal to issue an EHC Plan.
• About the provision specified in section F of the EHC Plan.
22. Where a parent has appealed to the SEND Tribunal, we cannot investigate what happened between the date the appeal right arose until the appeal is completed. So, the Council’s actions during that period are outside the Ombudsman’s jurisdiction. It also means we cannot seek a remedy for lack of education or provision during that period.

The Coronavirus Act 2020

23. In May 2020 some aspects of the law on education, health and care (EHC) needs assessments and plans changed temporarily to allow councils, health commissioning bodies, education settings and other bodies who contribute to these processes more flexibility in responding to the demands placed on them by COVID-19.
24. The SEND Regulations 2014 were amended from 1 May until 28 September 2020. These amendments removed specific timescales set out in the SEND code of practice replacing these with the requirement to do so ‘as soon as reasonably practicable’. However, this was only if a council was unable to meet the timescales because of ‘a reason relating to the incidence or transmission of coronavirus’.

Elective home education

25. Parents have a right to educate their children at home which can include the use of tutors or parental support groups. Councils do not regulate home education. However, the law requires councils to make enquiries about what education is being provided when a child is not attending school full-time.
26. Councils should have a policy on elective home education setting how it will engage and communicate with parents. The Department for Education recommends each council makes contact with home educating parents on at least an annual basis to consider the suitability of the education provided. Where there are no concerns, this contact is likely to be very brief.
27. We can investigate how councils make enquiries about what education is being provided to children who do not attend school full-time and how they decide what is being provided constitutes ‘suitable education’.

What happened

28. Miss X has a son, F, who has autism. F also has other learning disabilities and in 2018 he attended a mainstream primary school.
29. Prior to 2018 Miss X had asked the Council to assess F for an EHC Plan which it declined to do. In August 2018 Miss X said it was clear that F’s school was not meeting his needs. So, she wrote to the school and informed it that she would meet F’s needs at home until F was provided with a plan. Miss X sent a copy of the letter to the Council SEN team. In September 2018 the school registered F as receiving elective home education (EHE).
30. Records show the Council called Miss X in early September 2018 to clarify the situation. They show Miss X confirmed she would educate F at home but would consider putting him back into school if he was provided with an EHC Plan.
31. In October 2018 Miss X asked the Council carry out an EHC assessment with F. The Council refused so Miss X appealed the decision to the tribunal.
32. In December 2018 the Council carried out a home learning monitoring visit with Miss X and F. The Council decided Miss X was providing adequate education. The is no record of Miss X raising any issues about F’s home education.
33. In January 2019 Miss appealed to the tribunal about the Council’s refusal to carry out an EHC assessment for F. In April 2019 the tribunal ordered the Council to carry one out.
34. In June 2019 the Council declined to issue F with a EHC Plan. It recommended F’s needs could be met at a mainstream school.
35. In August 2019 Miss X appealed the Council’s decision not to issue F with an EHC Plan to the tribunal. The tribunal heard Miss X’s case in January 2020 and asked the Council to carry out further assessments on F and then issue a new decision about whether to issue a plan.
36. In March 2020 the Council agreed to provide tuition to support F at home. This included an online learning package and support from a qualified teacher.
37. Following a re-assessment of F’s needs the Council agreed to issue F with an EHC Plan. It issued the draft plan in March 2020 and then the final one in mid-June 2020. F’s final EHC Plan included provision for a full-time teaching assistant dedicated to work with him.
38. Miss X complained to the Council. She complained about the Council’s refusal to assess and issue F with an EHC Plan meant she was forced into removing F from school and teaching him at home. She said as a result F had missed over a year of full-time education. The Council issued its final response to Miss X in which it did not uphold her complaints. It said Miss X chose EHE for F and confirmed this decision to officers when they carried out home visits. The Council said it based its decisions about F’s EHC assessment and EHC Plan on information it had at the time. As Miss X had used her right of appeal at the tribunal the Council declined to comment on this matter any further.
39. Miss X was unhappy with the Council’s response, so she complained to us.
40. Following Miss X’s complaint to us F started in year 7 at a secondary school in September 2020. In October 2020 Miss further complained to us that F was not receiving the provision in line with section F of his EHC Plan. This included the individual support from the teaching assistant as well as access to the learning base. As a result, Miss X had removed F from school and reduced his attendance to part time.
41. The school said that due to COVID-19 F’s bubble was restricted to two adults. So, although F was not supported by his teaching assistant there was always an additional adult in class at all time. Records show the Council contacted the school to offer guidance and support. Following this the school met with Miss X who has said that from November 2020 F had the support he needs and was back in school full-time.

My findings

42. Records show Miss X notified the school and the Council about her intention to remove F from school and teach him at home in August 2018. Miss X also sent a copy of her letter to the school governors. The Council carried out an initial assessment during which it offered advice on what provision Miss X could provide for F. It then carried out a home monitoring visit and was satisfied F’s provision met the legal requirements. Although Miss X indicated she wanted F reintegrated back into school she was clear this would not be without an EHC Plan for F. There is no evidence which shows Miss X was forced into EHE and she did not raise this issue during the monitoring visit. It was open for Miss X to send F back to school at any time. The Council carried out its duties in line with the law and relevant guidance and was not at fault.
43. The tribunal ordered the Council to reassess F for an EHC Plan in January 2020 and following this the Council agreed to issue F with an EHC Plan. The law says that in these circumstances the Council must issue the final plan within 14 weeks of the tribunal’s order. The Council issued F’s final plan in June 2020 which was a delay of nine weeks which was fault. Although this period overlapped with the national lockdown due to COVID-19, the deadline for issuing F’s plan was in April. Therefore, the relaxation of timescales in line with the amended SEND regulations between May and September 2020 did not apply in this instance. Although there was fault, I cannot say this caused F a significant injustice. This is because schools were shut because of the COVID-19 national lockdown and the agreed plan was to reintegrate F back into school from September 2020 onwards and not before.
44. Following her complaint to us Miss X raised a further issue in that F was not receiving the provision set out in his plan, specifically his one-to-one support when he started back at school in September 2020. As a result, Miss X chose to reduce F’s attendance at school to part time. The records confirm F was not receiving the dedicated support from his teaching assistance because the school had implemented restricted class bubbles because of COVID-19. However, the Council was unaware of this until Miss X raised her concerns with it in October 2020.
45. Following this, the Council did as we would expect and liaised with both Miss X and the school. This resulted in F going back to school full-time with the appropriate support in line with his plan. So, although F was without the provision set out in his plan during the first half term at the school, I cannot say this was because of Council fault.

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Final decision

46. I have ended my investigation. I found fault however this did not cause a significant injustice.

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Parts of the complaint that I did not investigate

47. I did not investigate what happened during the period November 2018 to January 2020. This is because the tribunal considered Miss X’s appeals about the Council’s refusal to both carry out an EHC assessment and to issue F with an EHC Plan. Therefore, the Council’s actions and resulting consequences of those actions during this period are outside of our jurisdiction.

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Investigator's decision on behalf of the Ombudsman