Summary: Mrs H complains the Council failed to provide the appropriate educational support to her daughter (Child A) who has special educational needs. We found the Council failed to provide Child A suitable education for ten months. It also delayed in carrying out the EHCP process and failed to maintain effective contact with Mrs H. There was also a fundamental failing by the Council to properly recognise that Child A was not receiving elective home education. The faults identified caused Child A and Mrs H an injustice and so we have recommended several remedies.

The complaint

1. The complainant, who I refer to as Mrs H, is making a complaint about the level of support provided by the Council for her daughter (Child A) who has special educational needs (SEN). Specifically, Mrs H alleges the following:
1. The Council failed to finalise an Education and Health Care Plan (EHCP) and name a school place for Child A for around 2 years.
2. Council officers failed to communicate with Mrs H in a time efficient manner and discuss suitable educational provision for Child A in a satisfactory way.
3. The Council declined to provide a personal budget for Child A and did not respond to requests within a reasonable time frame.
4. The Council ended Child A’s home schooling with no prior notice.
5. The Council failed to provide suitable educational provision for Child A.
2. Mrs H says this adversely impacted Child A’s mental wellbeing and caused irreparable damage to her education and progress. In addition, Mrs H says the Council’s failures have caused her financial loss due to legal expenses and paying for educational provision themselves. As a desired outcome, Mrs H wants the Council to make a payment to her to reflect her financial losses and the damage to Child A’s mental health and loss of education.

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What I have investigated

3. I have investigated all of the outcomes identified by Mrs H (above). However, I cannot investigate the suitability of education post the Council issuing a final EHCP. This is because the Ombudsman does not have the jurisdiction to investigate this matter for the reasons given in this statement.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended).
6. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended).
7. 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).

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How I considered this complaint

8. I have reviewed Mrs H’s complaint to the Council and the Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable legislation and policy guidance. Both Mrs H and the Council received an opportunity to comment on a draft of my decision. Each of their comments were considered before a final decision was made.

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What I found

Background and legislative framework

Duty to provide education

9. The Council has a legal duty to make arrangements and to provide full-time and suitable education at school or otherwise that at school, as specified by s19 of the Education Act 1996. This states:

“Each local authority shall make arrangements for the provision of suitable education at school or otherwise than at school. This applies to 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.”

10. The provision should generally be full time unless it is not in the child’s best interests because of their physical or mental health.

Education and Health Care Plan (EHCP)

11. An EHCP is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHCP identifies educational and health needs and sets out the support to meet those needs (including, but not limited to, providing a specialist educational setting). Before an EHCP is provided, the Council must decide whether to offer a needs assessment to help determine what type of support would be suitable.
12. Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. They must also take steps to ensure the view of the child is properly recorded and considered when planning provision for them. In cases where a council has been unable to find a suitable school placement within the time frame, they have a duty to provide appropriate alternative education.
13. The process of a needs assessment and EHCP development must be carried out by councils in a timely manner. The whole process from asking for a needs assessment until a final EHCP being issued must not take longer than a maximum of 20 weeks.
14. The First-tier Tribunal (Special Educational Needs and Disability) (Tribunal) is responsible for handling appeals against local authority decisions about special educational needs. This includes a refusal to assess a child’s educational, health and care needs and create an EHCP.

Elective home education (EHE)

15. Parents may choose to educate their child at home, including where the child has SEN (s7 of the Education Act 1996). In choosing to educate a child at home, the parents take on financial responsibility for any costs involved. Where a parent withdraws a child with an EHCP from school to home educate them then the Council no longer has an obligation to provide the special educational provision in the EHCP. This is because the parents are deemed to be making their own suitable alternative arrangements for their child’s education.
16. The ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (the Code) is statutory guidance. This says that councils have a power, but not a duty, to provide support (such as funding or therapy at home). The Code states that councils should fund the SEN needs of home-educated children where it is appropriate to do so (paragraph 10.30).
17. EHE children can have an EHCP (commonly where the Council is providing some financial support or therapies, or the family anticipates the child returning to formal education in future). The Code gives advice about assessments and reviews for EHE children. Where an EHE child does not have an EHCP there is still an obligation for the Council to check they are receiving proper education.

Education otherwise than at school

18. If school or college is not appropriate for the child or young person with an EHCP (for either all or part of their education), councils can arrange for any special educational provision which the child or young person requires to be delivered somewhere other than in a school or college. This is often known as ‘education otherwise than at school’ (EOTAS). The Council is responsible for securing and funding this provision. EOTAS will be named in the EHCP in Part F (s61 of the Children & Families Act). There is a right of appeal to the Tribunal about any decision to name (or not name) EOTAS in the EHCP.

Personal budget

19. A special educational needs (SEN) personal budget is an amount of money identified by the local authority to deliver provision set out in an EHCP. The Council can identify elements of the provision which can be made via a direct payment. Councils must ensure that children and young people with EHCPs receive a level of support which will help them achieve the best possible educational and other outcomes.
20. In accordance with s49 of the Children and Families Act 2014, a council that maintains an EHCP for a child or young person must prepare a personal budget if asked to do so. The council prepares a personal budget for the child or young person if it identifies an amount as available to secure particular provision that is specified in the EHCP. This is with a view to the child’s parent or the young person being involved in securing the provision.

Chronology of events

21. In late 2016, Child A left her mainstream educational setting due to her SEN and was receiving EHE.
22. In October 2018, Mrs H sought a needs assessment from the Council for Child A. The maximum 20-week period for the Council to complete a final EHCP was therefore mid-February 2019. The Council accept fault that it did not adhere to the statutory timeline to complete the process.
23. In February 2019, the Council issued a draft EHCP and Mrs H provided feedback within two weeks. There was then a gap of 10 months before the Council finalised Child A’s EHCP. The Council also accept a delay in communicating with Mrs H during this 10 month period.
24. In March 2019, Mrs H emailed the Council to express that she no longer wanted Child A to be considered as receiving EHE. This was acknowledged on the same day by the Council.
25. In May 2019, the Council began providing home tuition to Child A in the form of five sessions per week. However, at times, Child A could not engage with the home tuition due to her SEN and this meant tuition was not always provided.
26. In September 2019, Child A was not receiving home tuition due to a fault by the Council which meant the support unintentionally stopped.
27. In October 2019, Mrs H sent the Council a pre-action protocol letter. This alleged Council was not providing Child A with suitable education provision. It also said the Council had not yet issued a final EHCP. Mrs H asked the Council to issue a final EHCP and name ‘education otherwise than at school’ as the placement.
28. A week later, the Council reinstated Child A’s home tuition after realising it had inadvertently stopped.
29. In January 2020, the Council issued a final EHCP for Child A. The Council named EHE as the educational placement for Child A.
30. In February 2020, Mrs H asked the Council for a personal budget. The Council declined to provide this because it said the provision being sought by Mrs H was not provision identified within Child A’s EHCP. Mrs H requested a review of the Council’s position, but the decision did not change.
31. In March 2021, the Council issued an amended final EHCP for Child A which named a mainstream college for her to attend.

My assessment

Delay in completing an EHCP

32. The Council is legally required to provide an EHCP within 20 weeks of a needs assessment being requested, subject to exceptions. In Child A’s case, the Council failed to provide a final EHCP until week 65. This is a significant delay by the Council and so I find it was at fault. The Council has apologised to Mrs H for its failing in this respect. In my view, this caused Child A an injustice since she was out of education and not receiving the support required due to the delay. The fault also caused Mrs H significant distress and uncertainty.

Failure to keep responsive contact

33. The Council has accepted there was a failure to maintain regular and effective contact with Mrs H during the EHCP process. The evidence I have reviewed shows the Council was not, at times, responsive to Mrs H’s concerns and it failed to recognise the points she was making. The Council was therefore at fault which caused excessive time and trouble for Mrs H, as well as uncertainty and distress. It also contributed to the delay in completing a final EHCP for Child A and therefore the amount of time she was without the correct support.

Alternative education provision

34. The Council has said it did not owe a duty to provide alternative education provision for Child A because she was receiving EHE. This point is strongly contested by Mrs H who says she expressly told the Council she did want Child A to be considered as receiving EHE. I have reviewed a number of documents in this case where Mrs H and her solicitors have sought an educational placement for Child A since March 2019. I have also read correspondence between Mrs H and the Council on the issue of withdrawing Child A from EHE. The issue was acknowledged by the Council. In my view, Child A was receiving EHE until March 2019, after which she was out of education on account of her SEN. The Council was therefore under a legal duty to provide suitable alternative education provision after the date Child A’s EHE ended.
35. In addition, I consider the Council was at fault for failing to note Child A was not receiving EHE. This point was expressly put to the Council by Mrs H in March 2019, October 2019 and post a draft and final EHCP. The naming of a placement is an appealable matter (see paragraph 18) and so I cannot find fault with the naming of EHE in the final EHCP. However, by failing to act on Mrs H’s wishes, this flawed the EHCP process and the nature of the provision Child A needed.
36. The Council’s final complaint response to Mrs H states the delay to complete the EHCP process meant Child A was not receiving the education appropriate provision between February 2019 and January 2020. It apologised to Mrs H for this failing. Had the Council completed the EHCP process when it should have, the Council would have been under a duty to provide support much sooner. I therefore consider the Council was at fault for failing to provide suitable education provision for a period of 10 months. This period represents the time which lapsed between Mrs H ending EHE and the Council completing a final EHCP.
37. The fault identified caused Child A an injustice as she was not receiving the correct educational support she required. For instance, Child A’s final EHCP provides targeted plans, strategies and one-to-one support to help her manage her SEN. The delay in completing the final EHCP meant this provision was not provided. That said, I note the Council did provide some support to Child A, namely five sessions of home tuition each week in basic subject areas. I am recommending a financial payment be made to remedy the injustice, but which reflects the Council did provide some provision.
38. Turning to the suitability of education provided by the Council after it issued a final EHCP (January 2020). I cannot by law investigate or remedy a matter in circumstances the complainant could have exercised her right to appeal to a tribunal, unless it was unreasonable for them do so. Importantly, the Council issued a final EHCP in January 2020, again naming EHE which Mrs H contests. Instead, Mrs H wanted Child A to receive EOTAS and eventually a specialist placement. In these circumstances, Mrs H had a right of appeal against this. The requirement to provide suitable alternative education is inextricably linked to the naming of a school placement for which Mrs H had a right of appeal. Case law has firmly settled the Ombudsman does not have the legal jurisdiction to question the suitability of alternative education provision in these circumstances. There is no evidence to suggest it would not have been reasonable for Mrs H to have exercised her right of appeal.

Delay in reinstating home tuition

39. During the time Child A was receiving home tuition, this inadvertently stopped at the end of the academic year (2018/2019). This meant that at the start of the new academic year, tuition for Child A was not put in place. Mrs H brought this to the attention of the Council by way a pre-action protocol for judicial review in October 2018. The Council then reinstated home tuition a week afterwards.
40. The Council was responsible for the provision of home tuition and the failure to ensure this was in place was fault. However, the Council promptly reinstated home tuition when it became aware of the fault. In terms of the injustice to Child A, I have already found that she was not accessing the correct educational support she required. The brief delay Child A experienced in receiving home tuition will therefore be considered more broadly when reaching a remedy for a lack of educational support from the Council.

Personal budget

41. The Council received a personal budget request from Mrs H in February 2020. It received further correspondence in March 2020. The Council explained the request for a personal budget and what the budget would be spent on was not identified provision in Child A’s final EHCP. It therefore declined to provide this. The Council wrote to Mrs H in January 2021 to formally notify her of its decision. Mrs H requested a review, but the decision remained the same.
42. In my view, the Council delayed in telling Mrs H of its decision to not provide a personal budget for Child A. I believe this is also evidenced by the Council accepting it has not been responsive to Mrs H and has failed to keep in contact with her. On that basis, the Council was at fault and I believe this caused Mrs H a degree of uncertainty and distress. This is because Mrs H was trying to secure Child A what she felt was the right amount of support, yet she was not receiving responsive contact from the Council. This meant she was not able to make well-informed decisions about Child A’s educational needs for the future.
43. Turning to the decision not to provide a personal budget. The law says councils must prepare a personal budget if it identifies an amount as available to secure particular provision that is specified in the EHCP. Therefore, the Council was correct to assess whether Mrs H’s request was for provision named in the final EHCP. On review, the Council decided such provision was not included within the plan. However, Mrs H says such provision would not have been identified as the Council was incorrectly stating Child A was receiving EHE.
44. I have identified in this statement that the Council failed to address Mrs H’s repeated requests that Child A not be considered as receiving EHE. Nevertheless, the Council continued to maintain an EHCP for Child A as though she was. However, this matter is materially connected to the issue of the suitability of provision identified in Child A’s final EHCP. It is also connected to the named placement in Child A’s EHCP.
45. By law, I cannot investigate any matter in circumstances where Mrs H had or has a right of appeal to the Tribunal. In my view, Mrs H’s request for a personal budget is materially connected to the contents of Child A’s final EHCP. Mrs H had a right of appeal against the contents of the EHCP and I consider it would have been reasonable for her to have exercised this. The restriction I describe at paragraph five applies and I have no jurisdiction to investigate.

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Agreed action

46. To remedy the fault and injustice identified in this statement, the Council has agreed take the following actions within one month of a final decision:
1. Provide a written apology to both Mrs H and Child A which acknowledge the faults and injustice identified in this statement.
2. Pay Mrs H £2,500 (£250 per month of lost education) to be spent on the educational development of Child A.
3. Pay Mrs H £500 to acknowledge the distress and uncertainty she has suffered, as well as for time and trouble.
47. Within three months of a final decision, a senior officer of the Council will provide evidence it has undertaken a review of Mrs H’s case. The aim of the review will be to identify the cause of its failings in its customer service responsiveness, delays in the EHCP process and a failure to provide suitable education provision. The Council will identify service improvements in these areas to be implemented for the benefit of customers in the future.

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Final decision

48. The Council failed to provide Child A suitable alternative education for a period of ten months. It also delayed in undertaking the EHCP process and failed to keep in contact with Mrs H. There was also a failing by the Council to take action when she informed it Child A was not receiving EHE. The faults identified caused Child A and Mrs H an injustice and so I have recommended a number of remedies.

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Parts of the complaint that I did not investigate

49. I have not investigated the suitability of alternative education provision after the Council issued a final EHCP for Child A. Further, I have not investigated the Council’s decision to not provide a personal budget. This is because these parts of the complaint is outside our jurisdiction for the reasons given in this statement.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman