Summary: There was fault by the Council in the way it dealt with Y, a child with special educational needs. There was a failure to complete a timely review of his Education, Health and Care Plan (EHC Plan), poor communication and a delay in identifying an alternative education programme for Y. The Council will apologise, issue an amended EHC Plan and make payments described in this statement.

The complaint

1. Mrs X complained Kent County Council (the Council) failed to respond to her concerns about her son Y’s education.
2. Mrs X said because of the lack of contact from the Council, she had no choice but to educate Y at home and this meant he did not receive the provision on his Education, Health and Care Plan.

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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. 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

5. I considered Mrs X’s complaint to us, the Council’s response to her complaint and documents set out in this statement. A colleague discussed the complaint with Mrs X.
6. Mrs 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

Relevant law and guidance

7. Parents have a right to educate their children at home (Education Act 1996, section 7). In choosing to do so, the parents bear the costs.
8. Elective Home Education (April 2019) is guidance for councils. It recommends councils contact parents at least once a year to consider the suitability of education provided at home.
9. Children with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to secure special educational provision in an EHC plan. (Children and Families Act 2014, Section 42)
10. The Special Educational Needs Code of Practice (the Code) is statutory guidance which councils should have regard to. I have summarised relevant paragraphs below:
1. There must be a review of an EHC plan at least every year. The review considers the appropriateness of the EHC plan and whether any changes are needed, including any changes to the education placement (paragraph 9.166)
2. The first review must be held within 12 months of the date when the plan was first issued (paragraph 9.169)
3. Within four weeks of the review meeting, the local authority must decide whether to keep, cease or amend the EHC plan and must notify the parent. If amendments are needed, the local authority must start the amendment process without delay (paragraph 9.176)
4. Home education must be suitable to the child’s age, ability, aptitude and SEN. Councils should work in partnership with and support parents to ensure the SEN of these children are met. Councils should fund the SEN needs of home-educated children where it is appropriate to do so (paragraph 10.30)

What happened

11. Y, currently aged 14, has autism and anxiety. The Council issued Y with an EHC plan in September 2020. The EHC plan noted Y had extreme anxiety and he could not attend school; he had previously been on a reduced timetable, but he was not coping even with this. Section F of the EHC plan set out the SEN provision for Y which included:
• A weekly social skills group (30 minutes)
• Structured literacy and numeracy programmes (daily for 60 minutes each)
• A weekly intervention based on cognitive behavioural techniques
• Daily and as and when required emotional check-ins
• A weekly life skills programme (60 minutes)
• A weekly programme to develop independent living skills (60 minutes).
12. The EHC plan said Y’s placement was a mainstream secondary school and a review of the EHC plan was to take place by July 2021.
13. Schools closed between January and March 2021 because of the third wave of the COVID-19 pandemic. But most schools remained open for children with an EHC plan.
14. Mrs X emailed Y’s SEN case officer at the end of February 2021 saying:
• Y had become agoraphobic and hadn’t left the house since Christmas and so he could not attend school.
• The school could not offer home SEN support only classroom-based support, but she could not get Y to attend because of his anxiety.
• She was considering home schooling and wanted to know about resources.
15. Mrs X sent a further email the next day saying she had decided to home school Y and had been doing this for the last three months anyway and so it was the only way forward. She said she wanted a home tutor for Y for Maths and English and asked what would happen with his EHC plan.
16. Mrs X also emailed Y’s school at the end of March 2021 saying she had decided to withdraw Y and would be home educating him and had told the Council. The Council has a copy of Mrs X’s email on its case records.
17. The Council did not respond to Mrs X’s emails. A teacher from the school also emailed the SEN case officer in March and the officer replied saying Y’s case had been allocated to one of their colleagues. Mrs X told us no-one had told her about the change of case officer and she’d had no further contact from SEN team.
18. Mrs X sent further emails to the Council’s generic SEN email address in March. She said she had sent emails and left phone messages but had no reply. She asked the Council to amend Y’s EHC plan. In response to my enquiries, the Council accepted the SEN team had not replied to Mrs X’s contacts.
19. The school removed Y from its school roll from the end of February 2021. The school later notified the Council of its decision at the end of March 2021. (The form said pupils with an EHC plan should not be removed from the school roll unless authorised by the SEN team)
20. An officer from the Council’s home-schooling team visited the family in June 2021. The officer’s report noted Mrs X had complained to the Council due to the lack of contact from the SEN team. The report also noted Y had become agoraphobic, but since being home educated, he was leaving the house. At the meeting, the officer discussed Y’s SEN and whether the home education arrangements met Y’s needs. The outcome of the meeting was the Council was satisfied education at home appeared suitable, targets were in place and a review was to take place in three to six months’ time.
21. Mrs X complained to the Council. The Council’s final response to the complaint in July 2021 accepted communication from the SEN team was poor and apologised. The response went on to say:
• She had a right to home educate Y, but the Council then had no duty to make the SEN provision on Y’s plan if it was satisfied the arrangements made by the parent were suitable
• The Council must continue to review the EHC plan
• It would arrange to amend Y’s EHC plan as soon as possible to reflect he was being home educated
• It would arrange a review as soon as possible
• It wouldn’t provide a personal budget or any SEN resources.
22. Mrs X complained to us in July 2021. We asked the Council for a copy of Y’s annual review. It told us it had not completed an annual review.
23. A young person’s officer (YPO) contacted Mrs X in September after we told the Council we intended to investigate. Mrs X said she had decided to home school Y because of no guidance or support from the SEN team and the school were threatening to prosecute for non-attendance. The Council told us it had not received any request from Y’s school to request formal action for non-attendance and it had not taken any action on Y’s attendance.
24. The Council arranged and funded 10 hours a week of tuition for Y at the start of October. Tuition is continuing at the time of this statement.
25. The Council carried out an annual review of Y’s EHC plan at the start of November. The outcome was to maintain the plan and amend it. The review form noted Y was negative about returning to school, and Mrs X felt home education was the only option currently due to Y’s mental health. The Council was going to consider long term funding for home tuition.

Comments from the Council

26. The Council told me:
• It accepted Y’s placement was no longer suitable and alternative education was needed.
• There was no evidence of any communication with Mrs X between September 2020 and February 2021
• It became aware of Y’s difficulties at school at the end of February 2021; Mrs X said she was considering home schooling as she had been pressurised by the school which did not understand Y’s anxiety.
• School said it could not offer any more support because of the pandemic. It said it could only offer SEN support in the classroom which Y could not attend
• It accepted it failed to respond to Mrs X’s requests for advice in respect of Y’s EHC plan in a timely manner
• Y was removed from the school’s roll at the end of February 2021. The Council did not follow the proper process and the school remained named on his EHC plan. Had the proper process been followed, an amended final EHC plan would have been issued which would have described the education at home clearly. This would have given Mrs X the right to appeal to SEND tribunal
• The Council referred Y to home tutors in October 2021
• An Educational Psychologist would assess Y shortly to advise on the appropriate pathway for Y.
• It was going to amend Y’s EHC plan following the annual review in November.
• It accepted that there was no election to home educate Y and its decision not to support Y in his education and SEN provision was wrong. Therefore, Y was not provided with the SEN resources and online courses Mrs X had requested.
• It accepted Y should be educated as his parents wished under the Education Act 1996 and it would work with them to find appropriate education including a temporary arrangement for education at home.
27. The Council accepted a lack of communication impacted Mrs X’s decision to home school Y and that it took too long to identify an alternative education programme. It suggested a payment of £600 a month for six months and an additional £500 to reflect distress and time and trouble. So a payment of £4100 in total.

Was there fault?

28. There was fault by the Council.
29. There was a failure by the SEN team to respond to Mrs X’s contacts asking for help in February 2021, as Y was too anxious to attend school and the school could only offer his SEN provision in school. The Council should have considered whether to use discretion to hold an early annual review in light of Mrs X’s concern that Y’s school placement had effectively broken down. The annual review would have considered whether changes were needed to the plan, provision or placement. The failure to respond to Mrs X was fault and was a missed opportunity to consider the appropriateness of Y’s school placement and the suitability of the provision on his EHC plan.
30. The Council said it would carry out a review of Y’s EHC plan in July 2021 in response to Mrs X’s complaint. And the EHC plan stated there should be a review in July as well. The failure to complete an annual review within 12 months of September 2020 was fault and was not in line with Paragraph 9.169 of the Code. A review took place in November following prompting from this office. The Council is yet to issue Y’s amended EHC plan following the review, although it has said it intends to do so. This is a further delay which is fault and is not in line with paragraph 9.176 of the Code which says a council must start the process of amending an EHC plan without delay.
31. The Council accepts Mrs X did not elect (choose) to educate Y at home and so it was wrong to conclude in the complaint response that there was no duty on it secure the SEN provision in his EHC plan and wrong therefore to say Mrs X should bear the costs of educating Y at home. As the Council acknowledges this was not an ‘elective’ home education situation, it retained the statutory duty to fund Y’s SEN provision under section 42 of the Children and Families Act 2014. The failure to do so was fault.
32. There was also a failure to work in partnership with Mrs X and to support her to ensure Y’s SEN were being met while she was educating him at home. There was a failure to consider whether to fund Y’s SEN. This was not in line with paragraph 10.30 of the Code and was fault.

Did the fault cause injustice?

33. The lack of communication, delay in identifying an alternative education programme for Y and the other faults described in the previous section impacted Mrs X’s decision to home school Y and meant he lost out on about six months of council-funded SEN provision. Mrs X also suffered avoidable distress and time and trouble complaining.

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Agreed action

34. Our Guidance on Remedies suggests a payment of between £200 and £600 a month for loss of education as a guideline, depending on the impact. The Council accepted the impact on Y was severe and offered a monthly figure of £600, so £3600 in total. This is an appropriate payment to reflect the injustice to Y and the Council should make the payment within one month of my final decision.
35. The Council has also offered a payment of £500 to reflect Mrs X’s avoidable distress and time and trouble complaining. This is also an appropriate remedy for her and the Council should make the payment within one month of my final decision.
36. The Council should apologise to Mrs X and to Y and make these payments within one month of my final decision. The Council also needs to issue an amended EHC plan within one month of my final decision.

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Final decision

37. There was fault by the Council in the way it dealt with Y, a child with special educational needs. There was a failure to complete a review of Y’s Education, Health and Care Plan, poor communication by the Council and a delay in identifying an alternative education programme for Y. The Council will apologise, issue an amended EHC plan and make payments described in this statement.
38. I have completed the investigation.
39. 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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Investigator's decision on behalf of the Ombudsman