Summary: Mrs X complained about the Council’s handling of her daughter, Y’s, Education Health and Care plan, and its failure to ensure Y received a suitable education. The Council was at fault for a significant delay in finalising Y’s plan, a delay in consulting the family’s preferred school, and a failure to check whether the education Y was receiving at home whilst a suitable school was identified was suitable. I have recommended it pay Mrs X £1,800 to remedy the costs of educating Y at home for a longer period due to the delays and to recognise the educational opportunities Y missed out on. It should make changes to its processes to prevent recurrence of the faults.

The complaint

1. Mrs X complained about the Council’s handling of her daughter, Y’s, Education Health and Care (EHC) Plan. In particular:
• the delay in issuing a final EHC plan following the Tribunal order dated 6 November 2019;
• its failure to send her a copy of the final EHC plan dated 28 April 2021;
• its failure to consult with a special school in line with her preference before issuing the final EHC plan; and
• its failure to provide a suitable education for Y from September 2019 when she was of statutory school age on the mistaken belief that Mrs X had elected to home educate.
2. Mrs X said that, as a result of the Council’s failings:
• Y has been out of school since September 2019, which has negatively impacted on her learning and development. She is not due to start school until September 2022;
• Mrs X had to give up her job to home educate Y, which had a significant impact on the family’s finances; and
• Mrs X’s physical and mental health was affected, particularly as a result of the worry and stress, and the pressure she was under during the long battle to identify a suitable school and develop an effective EHC plan for Y.

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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 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)
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. 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. 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)
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)

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How I considered this complaint

9. I considered:
• the information Mrs X provided and spoke to her about the complaint;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
10. Mrs X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

11. A child with special educational needs (SEN) 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.
12. We can consider the other sections of an EHC plan. We do this by checking the Council followed the correct process, and took account of all relevant information, in deciding what to include. If we find fault affected the outcome, we may ask the Council to reconsider. We will not usually substitute our judgement for the judgement of professionals.
13. The Statutory Guidance: Special Educational needs and disability code of practice: 0-25 years (“the Code”) says:
• where the council refuses to issue an EHC plan, it must inform the child’s parents of its decision and their right to appeal it. The council must also ensure they are aware of the resources available to meet SEN within mainstream provision and other support set out in the Local Offer (paras 9.57 & 9.58);
• the council must send a draft EHC plan to the child’s parent and give them at least 15 days to comment on the content. During this time, officers must be available to meet the child’s parents if the wish to discuss the content of the draft EHC plan. Parents may also request a particular school or type of school at this stage (para 9.77);
• if the parent requests a particular school (from the types set out at paragraph 9.78) the council must comply with that preference unless: it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources (para 9.79);
• councils must consult the educational setting concerned and consider their comments carefully before deciding to name it in the young person’s EHC plan (para 9.80);
• when parents suggest changes to the draft EHC plan and these are agreed by the council, the draft plan should be amended as quickly as possible and a final EHC plan issued. Where the council does not agree the suggested changes, the council may still proceed to issue the final EHC plan. In both cases, parents must be told about their appeal rights (paras 9.125 & 9.126).
14. Where the SEND Tribunal orders a council to issue an EHC plan, the council should issue a final EHC plan within five weeks of the date of the order (Special Educational Needs and Disability Regulations 2014, regulation 44).

SENDIASS

15. The Special Educational Needs and Disabilities Information and Advice Service (SENDIASS) provide information, advice and support for parents and carers of children and young people with special educational needs and disabilities. It is a legal requirement that all councils have a SENDIASS service.

Compulsory school age

16. A child is of “compulsory school age” on 1 January, 1 April or 1 September following their fifth birthday. This means for a child born in September, although they will typically start school in the September in which they reach age five, they are not of compulsory school age until 1 January the following calendar year.

Child out of school

17. Section 19 of the Education Act 1996 says councils must make suitable educational provision for children of school age who are absent from school because of illness, exclusion or otherwise. This should be provided as soon as it is clear the child will be away from school for 15 days or more.
18. Where a child is not attending school, the council may serve a notice requiring parents to satisfy them that their child is receiving suitable education. If the council is not satisfied, it may issue a School Attendance Order. Councils can prosecute parents who do not comply with a School Attendance Order.

Elective home education

19. Section 7 of the Education Act 1996 says it is the duty of parents to ensure every child of compulsory school age receives efficient full-time education suitable for their age, ability and aptitude and that meets any special educational needs (SEN), either by regular attendance at school or otherwise.
20. The Code says councils should work in partnership with, and support, parents to ensure the child’s SEN are met where they already know the child has SEN or the parents have drawn the child’s need to their attention. This applies whether or not the child has an EHC plan. It also says councils should consider funding the SEN support for home-educated children where it is appropriate to do so. (The Statutory Guidance: Special Educational needs and disability code of practice: 0-25 years, at paragraphs 10.30 to 10.37)

Scope of investigation

21. As explained at paragraph 7 above, we would not usually investigate events more than 12 months before the complaint to us. In this case, Mrs X complained about events from 2017. The complaints between 2017 and September 2019 relate to the assessment of Y’s special educational needs (SEN) and the Council’s refusal to issue an EHC plan. Mrs X had a right of appeal to the SEND Tribunal about those matters, which she exercised, and the Tribunal ordered the Council to issue an EHC plan in early November 2019.
22. The courts have said we cannot investigate events during the appeal process, unless they are not connected to the issues being appealed. The lack of a school place from September 2019 is directly related to the appeal, since Mrs X was arguing that Y needed an EHC plan and that a mainstream school was not suitable. Therefore, I have decided to start my investigation from November 2019, which was when the Tribunal ordered the Council to issue an EHC plan.
23. I have investigated the period to July 2021, at which point Mrs X lodged a late appeal to the Tribunal, following the Council’s issue of a final EHC plan on 28 April 2021. The Tribunal accepted the late appeal, and a hearing was set for December 2020. Shortly before the hearing, the Council conceded that Y needed a special school, which she will start in September 2022.

What happened

24. Y has significant physical difficulties and special educational needs (SEN). Mrs X asked the Council to assess Y’s SEN and issue an EHC plan in 2017. The Council carried out an assessment but decided, in December 2018, not to issue an EHC plan.
25. Mrs X appealed to the SEND tribunal. Y was due to start school in September 2019. Parents must apply for a primary school place for the child by mid January for a September start. Mrs X did not apply for a school place because she did not consider a mainsteam school could meet Y’s needs, particularly without an EHC plan. Since the Council had refused to issue an EHC plan, Mrs X said she had no choice but to home educate.
26. In early November 2019, the Tribunal ordered the Council to issue an EHC plan. This required the Council to issue a final EHC plan within five weeks, which would be the end of December 2019.
27. The Council issued a draft EHC plan on 23 December 2019, which was sent by post so Mrs X did not receive it until 2 January 2020. Mrs X asked for a meeting to discuss the content of the draft EHC plan and sent the Council a completed parental response form, in which she indicated her preference for a special school, school 1.
28. The meeting was held on 21 January 2020. The Council does not have a written record of this meeting but says the amendments discussed were annotated on the draft EHC plan. Mrs X said she asked the Council to consult school 1, as part of the discussion about section I: educational placement, towards the end of the meeting. Ms Z, a SENDIASS representative, has confirmed this.
29. In response to my enquiries, the Council said it did not consult school 1 at that stage as Mrs X wanted to agree the EHC plan before it did so. I have seen no record to confirm this was agreed. The Council did consult with school 2, a mainstream primary school. School 2 said it could not meet Y’s needs within the ʺlow level of funding offeredʺ. It explained Y would need a lot of support, particularly in terms of her social and emotional development, and it may need to recruit an additional member of staff to support her. It also noted that Y had already missed a term of learning so would need support to catch up.
30. Mrs X said the Council did not tell her about this consultation and she only found out about it as part of a recent Tribunal appeal. In response to my enquiries, the Council said that consultation responses are available to parents at their request.
31. The Council was aware Y was not in school in January 2020. In response to my enquiries, the Council said it had no record that its SEND team contacted its children missing education team or elective home education team to let them know Y was not attending school. It said its SEND team had no duty to check the education Y was receiving at home was suitable and it was for Y’s parents to request support if they needed it. It said it was not clear whether they asked for support.
32. The Council did not update Mrs X after the January 2020 meeting. In early March, SENDIASS asked for an update, following which the Council issued a further draft EHC plan on 10 March. It apologised for the delay, which it said was due to capacity issues. On 23 March 2020, Mrs X asked the Council to make further changes to ensure the EHC plan was accurate. She also asked the Council to consult with school 1, as she was keen to secure a place for Y as soon as possible.
33. On 1 April 2020, the Council asked Mrs X to send details of the changes she wanted making. Mrs X said she would annotate the draft EHC plan, but this may take some time because all her children were at home as schools were closed due to the COVID-19 pandemic. Mrs X sent her detailed comments on 4 November 2020. The Council took no action in the meantime and did not consult school 1.
34. When Mrs X commented on the draft EHC plan, she said:
• there were inaccuracies throughout that needed correcting;
• recommended support from the Education Psychologist (EP) report needed including in section F;
• recommended support from the Occupational Therapist’s (OT) report needed including in section F; and
• section F needed significant further information adding.
35. The Council did not contact Mrs X about the proposed changes. SENDIASS asked for an update in mid February 2021 but the Council did not respond. SENDIASS asked again for an update on 24 March 2021. It said Mrs X would make a formal complaint if the Council did not respond within one week. The Council responded the following day. It said the COVID-19 pandemic was having an impact on staffing and on capacity within the SEND team. It enclosed a further draft EHC plan. On 26 March Mrs X asked the Council to make further changes. These related to the precise wording at five points in the draft EHC plan. She also asked the Council to consult with school 1.
36. On 19 April 2021, the Council emailed SENDIASS and Mrs X to say it was ready to issue a final EHC plan. It said it was aware of Mrs X’s preference for school 1 but in the absence of a decision to name school 1, did Mrs X want it to say Y would be ʺeducated otherwise than at school (i.e. home educated) or in the absence of an agreed school place a provision only plan?ʺ.
37. Mrs X responded that:
• she wanted confirmation all the changes she requested had been made;
• she wanted the Council to consult school 1 as a mainstream school would not be suitable for Y; and
• although Y was currently home educated this was due to Council failings and was not elective home education. She also pointed out that education otherwise than at school (EOTAS) was not the same as elective home education.
38. The Council confirmed it would consult school 1 after issuing the final EHC plan.
39. The Council finalised the EHC plan on 28 April 2021. It has provided a copy of its decision letter of the same date, which it says it sent to Mrs X with a copy of the final plan. The letter included information about appeal rights. The letter said whilst it was aware of the preference for school 1, with which it was consulting, the plan said Y was being home educated.
40. Also, on 28 April 2021, the Council consulted with school 1, which responded the following day to say it could not offer a place because it was full.
41. Mrs X did not receive the final EHC plan. She complained on 24 June 2021. She said Y was now 6 years old and still without education or a school place due to repeated failings by the Council. The Tribunal had ordered it to issue an EHC plan in November 2019 and it had still not done so almost 20 months later.
42. The Council responded on 6 July 2021. It noted that Mrs X did not provide details of the changes she wanted to the draft plan issued in March 2020 until November 2020. However, it accepted the finalising of Y’s EHC plan was ʺprotractedʺ, which was partly due to the impact of the COVID-19 pandemic and apologised for ʺthe inadequate serviceʺ she received.
43. Mrs X was unhappy with the complaint response. She said the Council had repeatedly failed to ensure a suitable education and EHC plan for Y and had failed to send the final EHC plan to the family. This meant they had missed the deadline for an appeal, although Mrs X would try to lodge a late appeal. She said the Council’s failings caused her significant worry and stress, and meant she had to give up her job to educate Y at home.
44. In relation to the issuing of the final EHC plan, Mrs X said that Ms Z, the SENDIASS representative, had told her the Council had not issued an EHC plan in April 2021. Ms Z said the Council’s computer system, to which she had access, indicated the plan was not issued until 6 July 2021, in response to the complaint. Ms Z provided screenshots which show an EHC plan and EHCP advice were uploaded on 6 July 2021. Ms Z said that usually the EHC plan and decision letter would be uploaded at the same time and the system would log the date sent. In this case, there was no decision letter on the system, which she said was unusual.
45. In response to my enquiries, the Council provided its own screenshot indicating documents were uploaded to its shared drive system on 28 April 2021. It could not confirm whether these were sent to Mrs X by post or email but said its usual process was to save the documents at the point it shared them with the parents.
46. In comments on my draft decision, it said it believes the EHC plan was issued in April 2021 as indicated by the date on the plan and cover letter. However, it was held on a local drive and not uploaded to its main system until July 2021.
47. In July 2021, Mrs X lodged a late appeal with the Tribunal and in August 2021 the Tribunal agreed to hear the late appeal. The appeal was concluded in December 2021, during which the Council agreed to name school 1. Y will not be able to start attending school 1 until September 2022 when she is due to go into year 3 because it does not have capacity until then. Y will have been out of school for three full academic years by that point. The Council agreed to provide alternative education for Y, which began in January 2022. Mrs X said that from January 2022 they received vouchers for free school meals for Y, which had not been available previously.

My findings

48. The Council decided not to issue an EHC plan in December 2018. I cannot comment on that decision. Mrs X had a right of appeal, which she exercised.
49. The Council had not consulted with schools at that stage because it was not issuing an EHC plan. In its response to our enquiries, it maintained it was Mrs X’s responsibility to apply for a school place for Y to enable Y to start school with her peers in September 2019. Whilst this was technically correct, Mrs X did not consider a mainstream school was appropriate for Y, and therefore felt she had no choice but to home educate Y until a suitable school was identified, which she anticipated would only be for a short time until a suitable school was identified.

Delay in issuing Y’s EHC plan

50. The Tribunal ordered the Council to issue a final EHC plan within five weeks of the order in early November 2019.
51. The Council said it issued a final EHC plan on 28 April 2021. There is some confusion about whether the decision letter and EHC plan was sent to Mrs X on that date. The Council said it was sent but cannot provide evidence of this. Mrs X did not receive it. It was not uploaded to its main computer system until July 2021, although the Council said it was held locally before that. On balance, I find that although the EHC plan may have been finalised on 28 April 2021, it was not sent to Mrs X on that date.
52. In any case, not finalising the EHC plan until late April 2021 was a very significant delay, which was fault.
53. I accept there was a delay between 1 April and 4 November 2020 because Mrs X was not able to send details of the further changes she wanted to make due to the COVID-19 pandemic and the need to home school her other children. However, the Council should not have allowed the process to drift for so long. It should have issued a final plan, and Mrs X could have appealed if she was unhappy with it.
54. But for the delay in finalising and issuing the EHC plan, Mrs X would have been able to appeal to the Tribunal more than 12 months earlier than she did. If she had appealed earlier, it is likely a suitable school place could have been identified for Y much sooner than September 2022, which is when Y is now due to start school, three years later than her parents wanted her to.

Consultations with schools

55. The Council should have consulted earlier with school 1, Mrs X’s preferred school. It did not consult school 1 until after it finalised the EHC plan in late April 2021. It could have consulted with a draft EHC plan, in line with normal practice, and as it did when consulting school 2. The delay in consulting the preferred school was further fault.
56. The Council did not tell Mrs X it was consulting school 2. Although I note the Council does make information about consultations available on request, it was not possible for Mrs X to request information about a consultation she had not been told about. Given the emphasis in the Code on councils working with families to co-produce EHC plans, including considering the appropriate placement, and the concerns Mrs X expressed about the suitability of a mainstream school, I consider the failure to share that information with her amounts to fault.

Child out of school

57. The Council maintained that Y could attend a mainstream school with support. It was aware from January 2020 that she was not attending school. By this point she had reached compulsory school age and the Council had a duty to ensure she received an appropriate education.
58. It said it understood Y was being electively home educated. I have seen no evidence it checked this, nor that it checked the education she was receiving at home was appropriate for her SEN. Nor is there any evidence the Council offered the family any support to educate Y at home to ensure Y’s SEN were met, including considering financial support.
59. There is also no evidence the Council considered whether it needed to take formal action for the failure to send Y to school.
60. The failure to take any action to confirm Y was receiving an appropriate education after she reached compulsory school age and specifically to consider whether her SEN was met by the home provision was fault.

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Agreed action

61. The Council will, within one month of the date of the final decision:
• apologise to Mrs X for the delay in issuing Y’s EHC plan following the Tribunal Order in November 2019, the delay in consulting school 1, its failure to tell Mrs X about its consultation with school 2, and its failure to ensure Y was receiving a suitable education from January 2020 to December 2021; and
• pay her £300 for her time and trouble in pursuing the Council to resolve the matter, a further £500 to recognise the additional costs she incurred for the additional time Y was at home due to Council delays and a further £1,000 for the educational benefit of Y, to recognise the impact of its failings on Y’s education. This makes a total payment of £1,800.
62. In considering the appropriate level of payment, I have taken into account that Y has not missed out on education entirely as she has been educated at home, but she has missed opportunities for social development and the prolonged period of time at home may make her transition to school more difficult.
63. The Council will, within three months of the date of the final decision:
• review its processes to ensure it issues final EHC plans within statutory timescales and within relevant Tribunal time limits, where applicable;
• review its processes to ensure that it consults appropriately with schools without delay and that it is open with parents about consultations; and
• reviews its processes to ensure that where its SEND team become aware of a child who is not attending school, whether or not they have an EHC plan, it reports this to the Council’s children missing education and elective home education teams so those teams can consider whether they need to take any action to either support the child to attend school or take formal action for non attendance or check that education provided at home is suitable, as needed.

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Final decision

64. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy the injustice and prevent recurrence of the faults.
65. 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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Parts of the complaint that I did not investigate

66. I have not investigated complaints about the period from 2017 to August 2019. This is because it is now too late to investigate those matters and they key issues were subject to an appeal to the SEND Tribunal as explained at paragraphs 21 to 23 above. I have investigated the period to July 2021, which was when Mrs X lodged a late appeal to the Tribunal. I cannot consider the period of the appeal, including the way in which the Council conducted the appeal, nor its consultations with schools during the appeal process.

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Investigator's decision on behalf of the Ombudsman