Summary: Miss X complained the Council failed to provide her son, F, with a suitable full-time education and provision in his Education, Health and Care (EHC) Plan between May 2019 and October 2021. The Council was not at fault for failing to provide suitable education as it offered F a school place, but Miss X decided to remove him from school and home educate him. The Council was at fault for a delay in issuing a decision letter following an annual review of F’s EHC Plan in May 2019. It was also at fault for failing to ensure the educational provision Miss X provided for F at home was suitable. The Council agreed to apologise and pay Miss X £300 to recognise the frustration and uncertainty this caused.

The complaint

1. Miss X complained the Council failed to provide her son, F, with a suitable full-time education or the provision set out in his Education, Health and Care (EHC) Plan between May 2019 and October 2021. Miss X said she removed F from mainstream school during this period because it could not meet F’s needs, choosing instead to educate him at home.
2. Miss X said the lack of support from the Council meant F has missed out on education and social development causing him and the wider family distress and uncertainty.

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What I have investigated

3. I have investigated the Council’s actions around F’s home education after Miss X withdrew him from School A in May 2019. I have also investigated the Council’s actions regarding F’s EHC Plan between May 2019 and December 2019.

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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. 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 decision was reached. (Local Government Act 1974, section 34(3), 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. 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)
8. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
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)
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. I spoke to Miss X about her complaint and considered information she provided.
12. I considered the Council’s response to my enquiry letter.
13. Miss X and the Council had an opportunity to comment on my draft decision. I considered comments before making a final decision.

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What I found

Education, Health and Care (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 set out in in the EHC Plan are put in place.

EHC Plan timescales

16. The Annual Review of an EHC Plan considers whether the provision remains appropriate and whether progress is being made towards the targets in the Plan. Following the annual review, the Council must decide whether to maintain, cease or amend the plan. Each of these three decisions carries a right of appeal. The Council must notify the child’s parents of its decision within four weeks of the review meeting.

The SEND Tribunal

17. Certain decisions related to special educational needs (SEN) 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.
18. 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.
19. Where a parent has appealed to the SEND Tribunal, we cannot investigate Council actions between the date the appeal right arose until the appeal is completed, where it is linked to the matters appealed. 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, if these matters are being appealed.

Elective home education (EHC)

20. The government has published guidance for councils around elective home education. It says 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, to satisfy itself that it is suitable for the child.
21. Guidance 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.
22. The SEND Code of Practice (the Code) confirms that where a child’s EHC Plan names a school, but the parents decide to educate at home then the council is not under a duty to make the SEN provision set out in the plan. However, this is provided it is satisfied the arrangements made by the parents are suitable.
23. The Code says councils must review the child’s plan annually to ensure itself the provision set out in it continues to be appropriate. It says the council should amend the plan to name the type of school that would be suitable but state that parents have made their own arrangements under S7 of the Education Act 1996.
24. 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

25. Miss X has a son, F, who has SEN and in 2019 attended a mainstream primary school, School A, which was named in his EHC Plan.
26. In May 2019 the Council carried out an emergency annual review of F’s EHC Plan. Records of the review show Miss X wanted F to move to a special school. The records do not show what was discussed at the review or whether professionals agreed that F required a specialist setting. Neither do the records show any actions to be undertaken following the review.
27. Following the annual review in May Miss X wrote to School A and the Council. She told them she was removing F from School A and would home educate him until the Council found him a suitable special school more suited to his needs. Miss X asked School A to remove F from its roll with immediate effect.
28. In December 2019 the Council wrote to Miss X informing her it had decided not to amend F’s EHC Plan following the annual review in May 2019. Therefore, F’s EHC Plan remained the same and continued to name School A as F’s placement. The letter informed Miss X of her right of appeal to the SEND tribunal.
29. In February 2020 Miss X requested a place for F at a special school, School B. Records show the Council’s provision panel considered Miss X’s request but decided F’s needs could be met in a mainstream school, as specified in his EHC Plan. The panel considered and acknowledged that Miss X was currently educating F at home but saw no clear evidence of why F could not attend School A.
30. In March 2020 two officers from the SEND team visited Miss X for a one-off visit to gather information about F’s current needs and to plan for potential reintegration back into mainstream school. The officers wrote a report which recommended various strategies to keep him focused during the day. The report noted Miss X had done some basic learning with F but not on a regular basis. However, the report did not include concerns that the education Miss X was providing was not suitable.
31. In May 2020 records show the SEND officer emailed the EHE officer prior to F’s annual review to ask for information about F’s home education. Records show Miss X completed an EHE questionnaire which detailed provision she had provided him with. The EHE officer told the SEND officer they had not assessed whether the provision provided by Miss X was suitable and confirmed Miss X had not received any support from it to date.
32. The Council carried out a review of F’s EHC Plan in May 2020. The Council proposed to amend F’s EHC Plan and sent Miss X a draft plan in June 2020. The Council issued F’s final amended EHC Plan in August 2020. The final plan named F’s placement as a ‘state funded primary school’. The decision letter to Miss X included information about her right of appeal to the SEND tribunal.
33. In October 2020 Miss X appealed to the SEND tribunal. Miss X appealed both the provision in section F and the named placement in section I. The main basis of Miss X’s appeal was that he required a specialist school setting rather than a mainstream primary.
34. In January 2021 Miss X complained to the Council. She complained it had not provided F with education or the provision outlined in his EHC Plan for over 20 months. Miss X asked the Council to provide tuition for F along with therapy and speech and language sessions. Miss X said she was not EHE F but trying to get him into a suitable special school.
35. The Council responded in February 2021 and said it was Miss X’s choice to remove F from school, referring her to the emails she sent it and School A in May 2019. The Council said its provision panel felt School A could meet F’s needs and it was her choice to keep him at home rather than sending him back to school.
36. Miss X asked the Council to consider her complaint at stage 2 of its procedure. She repeated her desire for home provision for F while she tried to find him an appropriate specialist setting. the Council responded and said the SEND tribunal was currently considering her appeal against the provision in F’s EHC Plan. It repeated its view that mainstream school could meet F’s needs and it remained open for Miss X to reintegrate him back into School A at any time.
37. In October 2021 the Council and Miss X reached an agreement on the date of the tribunal hearing with the Council naming a specialist school setting for F to start attending in November 2021.
38. Miss X remained unhappy and complained to us.

My findings

39. Records show Miss X notified both the Council and School A in writing that she intended to EHE F in May 2019. She quoted the relevant law and asked School A to remove F from its roll. It was open for F to return to mainstream education at any time. It is not Council fault that F remained educated at home during the period of this complaint.
40. However, the appropriate route to challenge the placement named in F’s EHC Plan was via the SEND tribunal. This right only started once the Council issued its decision letter following F’s annual review. The Council carried out an annual review of F’s EHC Plan in May 2019, but it did not issue a decision letter until December 2019. That is a significant delay and not in line with the 4 week statutory timescale which is fault. It delayed Miss X’s entitlement to appeal to the SEND tribunal. However, I do not find this caused Miss X a significant injustice as she ultimately did not exercise that right.
41. The code is clear in that Council’s are under no duty to provide provision in line with an EHC Plan where a parent chooses to remove the child from a school named in the plan and EHE them. However, this is provided it is satisfied the arrangements made by the parent are suitable. There are no records showing the Council assessed whether the arrangements in place were suitable for F at any time between 2019 and 2021. Miss X sent a questionnaire back to the Council in May 2020, however this was not related to the EHE team and internal emails confirm the EHE did not assess whether the provision was suitable. The failure to ensure Miss X was providing suitable home provision for F was fault and not in line with the Code or relevant guidance.
42. I cannot say whether the outcome would have been different had the Council assessed the suitability of the provision provided by Miss X earlier. However, it caused uncertainty around whether the Council might have had a duty to ensure the provision specified in F’s plan was made available had it assessed F earlier.

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Agreed action

43. Within one month of the final decision the Council agreed to:
• write to Miss X, apologise and pay her £300 to recognise the uncertainty and frustration caused by failing to assess the suitability of the home education Miss X provided F between 2019 and 2021.
• remind officers in its EHE team of its duty to assess the suitability of provision provided by parents who home educate children with EHC Plans in line with the Code. The Council will review its procedures to ensure this duty is made clear to its officers.
• remind relevant officers of the statutory timescales for sending EHC Plan decision letters to parents following annual reviews.

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Final decision

44. I completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by that fault.

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Parts of the complaint that I did not investigate

45. I did not investigate what happened around F’s school placement during the period December 2019 and May 2020. This is because Miss X had a right of appeal to the SEND tribunal following the Council’s decision not to amend F’s EHC Plan in December 2019. F’s absence from education during this period was linked to the content of his EHC Plan and his SEN. Therefore, it was reasonable for Miss X to use her right of appeal.
46. I also did not investigate Miss X’s concerns about F’s school placement from August 2020 to October 2021. This was because Miss X appealed to the SEND tribunal against the provision outlined in section F and the named placement in F’s EHC Plan which the Council issued in August 2020. F’s absence from education was linked to his SEN and therefore intrinsically linked to the reason Mrs X appealed to the Tribunal. 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