Summary: Ms X complained about fault and delay in the way the Council provided support for her child’s special educational needs and care needs. We cannot say that on the balance of probabilities her child missed out on education, but the fault did cause uncertainty and distress as to whether the outcome might have been different, which is in itself an injustice. Recommendations for an apology, financial payment and service improvements are made.

The complaint

1. Ms X complains on behalf of her child, whom I shall refer to as Y, that the Council:
1. Failed to provide support for Y’s special educational needs (SEN) when she informed the Council of this in 2018
2. Wrongly told her Y’s SEN could not be assessed until he had received a diagnosis so she did not apply for a statutory assessment until October 2019
3. Registered her as electively home educating when she did not consider this a choice and had sought help from the Council
4. Delay in issuing an Education, Health and Care (EHC) plan when the assessment was started and failed to keep her properly informed
5. Failed to obtain the correct advice during EHC assessment and the advice was not sufficiently detailed
6. Wrongly told her she had to choose a school for Y to be educated at or electively home educate and could not have a personal budget to educate him otherwise than at school
7. Delayed in providing social care support as this assessment did not take place until the end of the EHC assessment.
2. Ms X says the delay meant she could not appeal for support to educate Y outside of a school and the poor communication made the process very stressful and caused Y a lot of uncertainty.

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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 investigate complaints about councils and certain other bodies. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate:
• 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)
• We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
• We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. 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 cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
8. 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 provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
9. 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

10. I have considered information provided by the Council and Ms X including:
• Complaint documents
• SEN documents
• Tribunal appeal documents
• Elective home education documents
• Early Help documents.
11. I have considered relevant law and guidance including:
• Children Act 1989
• The Chronically Sick and Disabled Person’s Act 1970 (CSDPA)
• Working Together to Safeguard Children guidance
• Children and Families Act 2014 and associated Regulations and Code of Practice.
12. 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.
13. 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

14. Ms X first contacted the Council about Y in December 2017. The Council recorded this as a request for help with Y’s behaviour and referred Ms X to a Family Support worker. Ms X told me she also asked about education support and intervention at home at this time, but this is not recorded.
15. In January 2018 the support worker signposted Ms X to community activities and the short breaks team. Council records record that Ms X did not want more support at that time as she had several appointments lined up and felt she enough support in place. The service closed the file in February 2018.
16. Ms X told me no further support was available as the service could not help with education or speech and language / occupational therapy (SLT / OT). She says the support worker gave her details of the Special Educational Needs (SEN) team and educational psychology (EP) service. The family support worker did send an email signposting Ms X to drop-in sessions with the Council’s EP but the SEN team have no record of Ms X contacting them at that time.
17. In May 2018 Ms X applied for short breaks funding, which was granted.
18. Ms X has provided notes of a telephone call and an email about SLT and OT in July 2018. An adviser signposted Ms X to the NHS.
19. Ms X says an adviser told her in January 2019 Y did not meet the threshold for an education, health and care (EHC) needs assessment as he had no diagnosis.
20. The Council says Ms X did not speak to the SEN team, but to the impartial arm’s length advice service. This advice is confidential. Contact with this service would not alert the SEN team a child may need an EHC plan.
21. Ms X deregistered Y from school in February 2019. Ms X says this was because the placement broke down due to her son’s anxiety. Ms X signed a form which stated she was electively home educating (EHE). The school warned Ms X she would be financially responsible for Y’s education.
22. The EHE officer visited Ms X in March 2019 and noted Ms X expected to home educate for the foreseeable future but a parent request for an EHC plan in the longer term was discussed. The notes do not show Ms X was unhappy home educating or wanted Council support via a personal education budget. Ms X told me she queried at the time why her grievances about EHE were not recorded.
23. In October 2019 contacted the Council requesting additional support as Y was not accessing education. Ms X told the Council Y’s school had not wanted to do an EHC plan for him and she had deregistered him from school. Ms X said she had not wanted to home educate but this had seemed the best option as Y had high anxiety when attending school. Ms X says she made clear she was not happy with home educating and wanted a personal budget. The Council noted Ms X believed agreeing to an EHC plan would be dependent on Y going to school and she did not think his mental health would cope with this. Ms X said Y needed SLT, OT and perhaps a disability social worker. Ms X’s conversations appear to have been with the short breaks team who advised her to make a parent request for an EHC assessment and topped up the short break payment.
24. Ms X applied for an EHC assessment on 14 October 2019, she says she did this once she had received the diagnosis she believed was required. Her request stated she was not ‘electively’ home educating. Ms X requested SLT and OT assessment. The Council agreed to carry out an EHC needs assessment on 18 November 2019. It did not consider whether to seek the SLT and OT advice Ms X had requested.
25. Early Help (part of children’s social care) contacted Ms X and offered to start their assessment. Their records show Ms X asked to delay this until other advice from the EHC assessment was available and asked Early Help to contact her again in February.
26. The Council sent Ms X a draft plan in February 2020. Ms X complained about delay. The Council acknowledged there had been some delay and the date for the final plan would be slightly late (it was due by 2 March).
27. The draft plan indicated Y did have social care needs which were met by his family and short break funding.
28. Ms X asked for Y to be educated otherwise than at school (EOTAS) and to have a personal budget. This request was refused. Ms X queried this and the Council sent Ms X a letter explaining the difference between EHE and EOTAS. It said EOTAS was not relevant as Ms X was home educating.
29. In March 2020 the Council suggested schools to Ms X, but Ms X says professional advice was that her son would be unable to contemplate a return to school at that time.
30. Ms X asked for more specific advice to be obtained from the professionals who had provide advice and for the final plan to be delayed.
31. The Council issued the final EHC plan in July 2020. It named a type of school (specialist) as the placement Y should attend. Ms X did not agree and considered Y should be EOTAS with support from the Council via a personal budget. Ms X appealed to the SEND Tribunal to change the placement.
32. During the appeal further evidence was obtained from existing professionals as well as new assessments from SLT and OT.
33. The Early Help assessment started in February 2021. An application was made to the Council’s panel for direct payments for social care support (that is provision under s.2 CSPDA), which was approved.
34. A final amended EHC plan was issued in March 2021 completing the appeal, naming EOTAS and providing a personal education budget.
35. The Council’s response to Ms X’s complaint acknowledged there had been some delay between March and July 2020 in issuing the final EHC plan and it apologised for not keeping her fully informed during this period.

Analysis

Complaint issue 1: Failed to provide support for Y’s special educational needs (SEN) when she informed the Council of this in 2018

36. Ms X says she asked for education support in 2018. Y was attending school at that time so education support would have come via the school. The Ombudsman cannot investigate the actions of schools.
37. Ms X was signposted to an EP drop-in and the SEN team by the family support worker. There is no evidence Ms X attended the drop-in sessions or contacted the SEN team which would have been the appropriate routes for Ms X to discuss concerns about education. I am not critical the family support worker did not make a referral for an EHC needs assessment or financial support to home educate. There is not enough evidence to show Ms X requested this support but even if she did, Ms X was correctly signposted to education professionals but did not pursue their help at that time.
38. There is no evidence of fault by the Council in 2018.

Complaint issue 2: Wrongly told her Y’s SEN could not be assessed until he had received a diagnosis so she did not apply for a statutory assessment until October 2019

39. Ms X spoke to the arm’s length impartial advice service in January 2019, not an officer of the Council. Councils are responsible for providing impartial advice services but do not have access to the information shared, which is confidential. Councils are responsible for advice provided on their behalf.
40. Advice that a diagnosis is required for statutory assessment would be incorrect, but it is accurate that councils would usually require evidence of action by a school and about the nature of the SEN.
41. Ms X says, but for this advice, she would have applied for an EHC needs assessment sooner.
42. If Ms X had done so, it is speculative whether the Council would have agreed to assess at a time when Y was still on roll at school. It may have put more support into school first. The most I can say is there was a missed opportunity to provide Ms X with accurate information about EHC assessments which may have led to her making an earlier application.

Complaint issue 3: Registered her as electively home educating when she did not consider this a choice and had sought help from the Council

43. Parents have the right to educate their children at home (s.7 Education Act 1996). Elective home education (EHE) is distinct from education provided by a Council otherwise than at school, for example when a child is too ill to attend.
44. In choosing to home educate parents take on the financial responsibility for any costs involved including any related to SEN. Where a child with SEN but no EHC plan is educated at home the Council’s duty is only to check that they are receiving an appropriate education. Councils have a power, but not a duty, to provide support, for example funding or therapy at home for children with SEN who are EHE.
45. The evidence indicates Ms X withdrew Y from school for a period before deregistering him in February 2019 and the school advised her of the financial consequences of doing this.
46. The EHE notes show Ms X was pleased with Y's progress at home and he was accessing a wide range of activities, including via the short breaks fund.
47. Ms X says Y was too ill to attend school. There is no evidence Ms X discussed this decision with the Council or provided it with medical evidence supporting a need for medical tuition at home. Y did not have an EHC plan and had never had contact with the Council’s SEN department.
48. The EHE officer who visited in March 2019 did discuss EHC plans with Ms X but the notes say this was in the context Y may return to formal education at a later stage, not because Ms X was unhappy home educating. I acknowledge Ms X says the EHE notes are inaccurate, but I can only make findings of fault based on the evidence available.
49. If the EHE officer advised Y would need to attend a school to have an EHC plan, then this would not have been accurate advice and may have delayed Ms X making an application for an EHC plan.
50. There is no record of Ms X asking for Council financial support for education, for OT or SLT, or stating she was unhappy EHE in early 2019. I am not critical the Council did not provide support. It was unaware Ms X was not home educating through choice.
51. In October 2019 the Council did become aware Ms X was not home educating through choice. The Council should have discussed this with her and explored alternatives, a parent can withdraw from home education at any point. Failure to discuss Ms X’s concerns was fault.
52. I cannot say this would have led to the Council providing home tuition / EOTAS. The Council’s position on EOTAS was that it felt most children’s needs could be met at school or via school-based bespoke packages. The law on EOTAS is that councils can only provide EOTAS when it is inappropriate for some, or all, of a pupil’s needs to be met in a school.
53. It would have been a professional judgement for the Council, based on the evidence available at that time, what education to have offered Y if Ms X had been unwilling to continue home education. This would have included considering school-based education which Ms X would have refused.
54. I acknowledge Ms X has been left with the uncertainty of whether EOTAS might have been available had the Council discussed this option with her in October 2019 and this uncertainty is itself an injustice.

Complaint issue 4: Delay in issuing an Education, Health and Care (EHC) plan when the assessment was started and failed to keep her properly informed.

Complaint issue 5: Failed to obtain the correct advice during EHC assessment and the advice was not sufficiently detailed

Complaint issue 7: Delayed in providing social care support as this assessment did not take place until the end of the EHC assessment.

55. The Special Educational Needs and Disability Regulations 2014, Regulation 6 and the Code of Practice say that Councils must obtain advice for an EHC assessment from:
• Education setting
• ‘Health’ – it is for the Clinical Commissioning Group (CCG) to decide which professional should provide health advice
• Educational Psychology
• Social Care
• Any person requested by the parent where that is a reasonable request
• Anyone else the Council considers appropriate.
56. Advice must be provided within six weeks of the Council requesting it.
57. Parents also have a right of appeal to the SEND Tribunal if they consider that needs or provision are not adequately described in a final EHC plan.
58. The SEN Code of Practice says:

‘the local authority should consider with the child’s parent…and the parties listed…the range of advice required to enable a full EHC needs assessment to take place’

59. X did request SLT and OT assessments in her initial request for assessment of October 2019, the Council did not respond to these requests. This was fault.
60. SLT and OT advice was only sought in late 2020 once Ms X had appealed.
61. I find this fault did not delay the EHC plan as it was issued without waiting for this advice.
62. I acknowledge earlier SLT and OT advice may have narrowed the issues in the appeal and meant a more complete EHC plan was issued in July 2020.
63. I cannot say Ms X would not have needed to appeal, the central dispute about placement would, on the balance of probabilities, have remained.
64. I also cannot say Y missed out on SLT and OT because when the EHC plan was issued in July 2020 Y did not attend the type of placement named. The loss of education is linked to the placement, which was subject to an appeal and outside our jurisdiction (this is explained further below).
65. The Council obtained advice from the short breaks team and this was included in the Plan in the social care section. Ms X was offered an Early Help assessment to see if she or Y were entitled to further support, but Ms X requested this be delayed. Social care assessments for children in need (s.17 Children Act) are voluntary and so the Council could not have been expected to go ahead with this assessment without Ms X’s consent. Ms X has complained the social care assessment should have happened at the start of the EHC assessment, but I find that it was her choice to delay it, not due to fault by the Council.
66. I have found that Ms X might have applied for an EHC needs assessment in January 2019 if she had received different advice, meaning the process might have started eight months earlier. However, this is by no means certain for reasons given above.
67. The Council acknowledged in its stage one response the EHC plan was late and its communication with her could have been better between March and July 2020. It should have issued the final Plan within twenty weeks of receiving the request for assessment, by 2 March 2020. It did not issue it until late July. The Council has apologised for its poor communication.
68. Ms X complains her appeal right was delayed by four months. However, it was Ms X who asked to delay the final EHC plan to seek more detailed recommendations from the professionals who had provided advice. While Ms X is correct that recommendations for provision should be quantified and specified, if Ms X was anxious to avoid delay, she should have asked the Council to finalise the Plan in April and dealt with disputes about the content via the appeal.

Complaint issue 6: Wrongly told she had to choose a school for Y to be educated at or electively home educate and could not have a personal budget to educate him otherwise than at school

69. The Ombudsman cannot investigate a complaint if someone has appealed to a tribunal, even if the tribunal or court has not provided a complete remedy for all the injustice claimed. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999)
70. Where there is a right of appeal to the SEND Tribunal about a placement decision, the Court has decided the decision, and the consequences of it, are matters which are ‘inextricably linked’. (R (on the application of ER) v the Commissioner for Local Administration, 2014) The Ombudsman cannot investigate either the decision subject to the appeal or the consequences arising from the decision.
71. In practice this means that when someone uses a right of appeal against a placement named in an EHC plan the Ombudsman is barred from considering the period from when the appeal rights arose to the end of the appeal.
72. The Council’s position at the end of the EHC assessment was that Y’s needs were best met in a type of school (specialist). Ms X disagreed. Ms X had a right of appeal against the placement in the final EHC plan of July 2020, which she used.
73. As Ms X has used a right of appeal, the Ombudsman cannot consider:
• Whether the Council was correct to name a school placement instead of EOTAS, this is the same matter the Tribunal was asked to consider. Ms X cannot use two remedies (to the Tribunal and Ombudsman) for the same injustice.
• Whether the Council should have funded education support including therapies at home during the appeal period. That Y did not receive education funded by the Council in this period was a ‘consequence’ of the Council’s decision to name a school setting in his EHC plan. As the Ombudsman cannot consider this decision, we also cannot consider the consequences of the decision.
74. Ms X says she was given incorrect advice the only options were EHE or a school. Ms X provided me with an email from the Council about EOTAS dated March 2020. This said that the Council ‘will explore EOTAS with families…as a result of all possible options being explored’. However, the Council went on to say it could usually meet needs via its schools and services. It acknowledged it had the power to provide financial support to home educated children with SEN and explained the differences between EHE and EOTAS. It says as Ms X had decided to EHE and deregistered Y, EOTAS was not being considered but it would consider a bespoke package in a school.
75. I find this advice is flawed and confusing. It recognises EOTAS can be provided but does not explain why it could not be considered in Ms X’s case (given she had indicated she was not wishing to continue to home educate). While this was fault, I cannot say this would have led the Council to offer EOTAS. The Council’s position was that Y should be educated in a school. I consider Ms X would, on the balance of probabilities, have always needed to appeal to secure EOTAS.

Injustice

76. While there were was some delay and shortcomings in the advice provided to Ms X, it is speculative what difference this made to the outcome. There is not enough evidence to say that Y would have got an EHC plan naming EOTAS sooner than he did, received SLT or OT earlier, or that the Council would have provided alternative education (rather than requiring Y to return to a school).
77. I do acknowledge opportunities to consider these issues were lost and Ms X will always have uncertainty whether, but for the fault, the outcome might have been different. This uncertainty is an injustice.

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Agreed actions

Within four weeks of my final decision

78. The Council will apologise to Ms X and Y for the fault I have identified.
79. The Council will pay Ms X £500 for the distress and uncertainty caused to her and Y as a result of the faults identified.

Within two months of my final decision

80. The Council will remind officers:
• To discuss, record and action requests for professional advice made by parents during EHC needs assessments. If the Council decides a parent request for advice is not a ‘reasonable request’ under Special Educational Needs and Disability Regulations 2014, Regulation 6, it should provide a decision in writing giving reasons.
• That parents can withdraw from home education at any time and officers should discuss this fully with parents and consider whether the case should be referred to colleagues, for example school admissions or officers responsible for children missing from education or who have medical needs.
• That advice about the criteria for EHC assessments or EOTAS should not depart from the legal tests out set out in legislation and statutory guidance.

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Final decision

81. I have completed my investigation. There was delay and shortcomings in the advice provided to Ms X. I cannot say that this led to Y missing education, but I do find Ms X has suffered uncertainty and distress as to whether if the fault had not occurred the outcome may have been different.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman