Wiltshire Council (21 006 054)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 25 Mar 2022

The Ombudsman's final decision:

Summary: Mr E complained the Council failed to consult him when it assessed if his son should have an Education, Health and Care Plan and took too long to correct statements in that plan which were inaccurate or distressing to him. He also complained it had not done enough to monitor education his son has received at home, being provided by the child’s mother. We upheld the first part of the complaint but considered the Council had provided a satisfactory remedy for any injustice caused to Mr E.

The complaint

  1. I have called the complainant ‘Mr E’. His complaint has two parts.
  • First, the Council failed to consult him when it drew up an Education, Health and Care Plan (EHCP) for his son ‘F’, that he only learnt about in October 2019. It then failed to correct the content of the EHCP until April 2020, despite knowing it contained inaccuracies and a comment which was distressing to him.
  • Second, the Council failed to adequately monitor F’s education and wellbeing when he stopped attending school around April 2020.
  1. Mr E says as a result of the above the Council issued a EHCP which contained incorrect facts and made a derogatory statement about him. Mr E is concerned this may have been seen by people with whom he has a professional working relationship. Mr E is also concerned that F’s education and wellbeing suffered while he was out of school.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  2. 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)
  3. We may decide not to continue with an investigation if we decide we could not add to any previous investigation by the organisation or further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))
  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

  1. Before issuing this decision statement I considered:
  • Mr E’s written complaint to the Ombudsman and any supporting information he provided;
  • information provided by the Council in response to written enquiries;
  • any relevant law or guidance as referred to in the text below.
  1. I also gave Mr E and the Council chance to comment on a draft of this decision statement. I took account of any comments made before issuing this final decision.
  2. There is an information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted). Under the terms of that agreement, we will share our final decision on this case with Ofsted.

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What I found

Relevant law and guidance on EHCPs

  1. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says councils must consult with the child’s parent and the definition of parent includes any person who has parental responsibility for the child.
  2. The procedure for reviewing and amending EHCPs is set out in legislation and government guidance. The Code says that a EHCP can be amended at any time although it is not expected this should be on a very frequent basis. Amendments can be appropriate where there are minor or specific changes in the child or young person’s circumstances. So, a full review or reassessment of the EHCP is not always necessary.
  3. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued. We cannot investigate a complaint if someone has appealed to a tribunal.

Relevant law and Council policy on elective home education

  1. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend.
  2. There are no specific legal requirements for the content of home education; it does not need to include particular subjects, follow the National Curriculum or culminate in examinations. It does not need to follow a typical ‘school day’. Councils should not assume an unconventional approach constitutes unsuitable education and approaches should be judged on outcomes.
  3. Councils do not regulate home education. However, the law requires councils to enquire about what education is being provided when a child is not attending school full-time.
  4. Government guidance says the primary responsibility remains with the parent, but councils have a social and moral duty to ensure that a child is safe and being suitably educated. Where there is clear evidence the child is receiving suitable education, the need for contact should be minimal.
  5. Councils have a power, but not a duty, to provide support for children with SEN who are electively home educated. The SEN Code of Practice states that councils should fund the SEN needs of home-educated children where it is appropriate to do so.
  6. The Council says its policy is to keep a database of all children who are electively home educated when it becomes aware of them. In all cases it will request information about the education provided and it says it aims to do this within 12 weeks. These cases are managed by its Education Welfare Service (EWS) which employs specialist Education Welfare Officers (EWOs).

Background and chronology of key events

  1. Mr E has shared parental responsibility for F, who stays with him on a regular basis under the terms of a Court order. For the remainder of the time F lives with his mother, who I will call ‘Ms G’, from whom Mr E is separated.
  2. In June 2019, unbeknown to Mr E, Ms G asked the Council to assess F who has special educational needs (SEN) to see if he should have an EHCP. The request came via a solicitor and did not use a form the Council has for such requests, which asks the referrer to include details of both parents.
  3. By early October 2019 the Council had produced a draft EHCP. This contained a passage which described Mr E as an “absent parent” who had been “emotionally abusive” towards F. However, there was another passage in the document which said F saw Mr E every other weekend.
  4. The Council issued a final EHCP for F at the end of October 2019. This contained all the same passages as described above. The EHCP did not name a school for F.
  5. Mr E told me he learnt of the draft EHCP in mid-October 2019 and contacted the Council to alert it to his shared parental responsibility for F and his interest in the assessment. However, the Council says the first contact it had from Mr E was not until early November 2019, after it had issued the final version.
  6. The Council has a record of speaking to Mr E around a week after it issued the final EHCP. Mr E expressed concern about whether F needed or would benefit from an EHCP. The Council recorded telling him that it could not stop the assessment process; something it repeated in an email a few days later when it sent over a copy of the EHCP and supporting documentation.
  7. In mid-November 2019 the Council issued an amended version of the final EHCP. This named the school F would attend – an independent school at the choice of Ms G, with the EHCP stating his needs could be met at a mainstream school. This version of the document also included for the first time Mr E’s contact details. But still contained the statements described in paragraph 21.
  8. The Council met with Mr E soon after that. I have seen no notes of that meeting. But the Council says that it told Mr E he should make representations on the content of the EHCP in writing.
  9. The Council says it heard nothing further from Mr E until December 2019 when he wrote to it to advise that F’s school had asked him to leave by the end of March 2020. Mr E’s email said the EHCP needed to be both reviewed and appealed and so the Council sent him details about appealing to the SEND Tribunal.
  10. Mr E did not appeal. But the Council reviewed the EHCP in Spring 2020 in the light of the breakdown of F’s school placement. In April 2020 the Council issued a further final version of the EHCP. This version took out the statements made about Mr E which referred to him being emotionally abusive or absent. The Council said before this time Mr E had not made representations about any content he wanted changing. The EHCP again said F would attend the independent school, although his needs could be met in a mainstream setting. By now Ms G had made clear her preference for a specialist school placement for F, while Mr E supported his needs being met in a mainstream school.
  11. During this investigation the Council said that the independent school provided work for F at home during the first COVID-19 lockdown. But I noted by late May 2020 Ms G was asking the Council for support with home education for F. By June 2020 the Council had arranged for F to receive some home tuition from a specialist SEND teacher.
  12. In July 2020 the Council issued an amended final EHCP that named a mainstream school. But it says the mainstream school refused to accept F on its school roll. While Ms G elected to continue to home educate F.
  13. In November 2020 the Council EWS contacted Ms G to make informal enquiries about F’s home education. This was during a period of local COVID-19 restrictions and the contact was made remotely by video or telephone. The EWO carrying out the enquiries only spoke to Ms G.
  14. The EWS produced a report which noted F received support from the SEND teacher, a specialist tutor and an education project for home-educated children. The report contains some level of detail on the work being done by F and his progress in different subject areas. It concluded that F was receiving a suitable home education.
  15. In March 2021 Mr E was in contact with the Council wanting to know more about the EWS involvement in F’s case. He was unhappy the service had not contacted him. When he saw the report he was unhappy the officer had not spoken or met with F.
  16. In May 2021 the Council wrote to Mr E and defended the roll of its EWS. It said:
  • its EWO had completed their report without a home visit or speaking to F due to the impact of COVID-19. It explained the Council dealt primarily with the parent home educating and so would not always speak with the child;
  • for the same reason the Council had not made contact with Mr E;
  • the report contained no input from the specialist SEND tutor helping F as he was employed by the Council – so it knew he provided suitable education;
  • the service liaised with the SEND service as appropriate.
  1. Ms G appealed the EHCP issued in July 2020 wanting, amongst other things, for the Council to name a specialist independent provision for F. Her appeal was not heard by the SEND tribunal until June 2021 and it did not issue a decision until the following month.
  2. Mr E was aware of the tribunal and made representations to it. He disagreed with Ms G that F needed specialist provision and made his argument to the SEND Tribunal. Having heard from all sides the SEND Tribunal upheld the appeal and amended F’s plan so that it required him to attend a specialist provision.
  3. When Mr E complained, the Council apologised for not contacting him when it agreed to Ms G’s request for a EHCP assessment. It also apologised for any offence caused by statements which appeared in the original versions of the EHCP. It said that subsequently it had kept in regular contact with Mr E about the EHCP process. It said that relevant officers had received a reminder of the need to clearly establish parental responsibility at the outset of the EHCP assessment. And it would provide training to ensure that opinions given by a parent included within a EHCP did not read as statements of fact. The response also sought to reassure Mr E the Council had some oversight of F’s home education through its EWS. That service did not have concerns about the home education he received.
  4. Mr E escalated his complaint and the Council gave its final reply in June 2021. In this the Council explained more about why F had not attended the mainstream school. The Council said Ms G had decided to electively home educate F while her appeal against the EHCP was ongoing and the Council had supported F’s education in the light of her decision. It explained more about the contact of the EWS with Ms G and referred Mr E back to the correspondence he received from that service in May 2021.
  5. In both his communications with the Council and this office Mr E has said his understanding is that professionals have reported concerns about F’s wellbeing to a Council safeguarding hub. This is a service that considers reports of children being harmed or at risk of harm. The Council says that it has no record of any alert about F having been received by its safeguarding hub at any time.

My findings

The complaint about the Council failing to consult Mr E about F’s EHCP and delay in correcting its content

  1. The Council accepts it was at fault for not contacting Mr E when Ms G first requested it assess F for an EHCP. It recognises that its officers should have sought to clarify parental responsibility for F. The Council has said the nature of Ms G’s request, via a solicitor, contributed to it not doing so. I accept information about Mr E may have been provided had the request been made by a standard form. But even so I note the Council’s draft EHCP still referred to Mr E seeing F every other weekend, which contradicted the statement he was an absent parent. So, officers were alerted to Mr E having a role in F’s life. They missed the opportunity to make further enquiries before Mr E learnt of the EHCP process in October 2019.
  2. As a result, Mr E missed the opportunity to contribute to the EHCP process at the outset. He also missed the opportunity to correct the negative impression given of him in the statement that appeared in the original versions of the EHCP.
  3. I find over time both the Council has addressed both these matters. The Council made efforts to involve Mr E in the EHCP process after November 2020 regularly seeking his views and inviting his comments. I recognise Mr E has not always agreed with the content of the EHCPs that have resulted but that is not a matter I can take a view on. F’s case has been to a SEND tribunal, and we cannot question the content of a plan where the tribunal has ruled on it.
  4. I can understand Mr E’s concern that versions of the EHCP were circulated with the inaccurate and distressing comment about him and not corrected for around six months. I consider the Council would have had scope to issue a minor amendment to the EHCP before April 2020 to remove the offending comment. But it says there is no record that Mr E specifically asked it to, and I have seen no evidence to contradict that. So, I do not find fault for the time taken to correct the offending comment.
  5. The Council has apologised for Mr E’s distress for the fault set out above and I consider this a sufficient remedy.
  6. I have considered if the Council should issue a letter of correction to anyone who received the early versions of F’s EHCP with the offending comment. But I think it unlikely it went to anyone with whom Mr E is likely to have professional contact. While any professional still working with F will have seen later versions where the offending comment was removed and Mr E’s role in F’s life is accurately recorded. With the passage of time therefore I do not consider it would be helpful or proportionate for the Council to take this action.
  7. I also note the Council has learnt lessons from what happened here. It has issued appropriate guidance and training to relevant staff to try and prevent a repeat.
  8. Finally, I have considered if a payment of money could be justified, something we will sometimes recommend. But I do not consider the level of harm suffered by Mr E is sufficient that we should do so on this occasion. This is after taking account of the factors listed above.

The complaint about the monitoring of F’s home education

  1. It is unsatisfactory the Council should have named a mainstream school for F in his July 2020 EHCP which he never attended. I have considered if I should make more enquiries into the Council’s statement that the school refused to accept F and what action it took in response.
  2. However, I see no merit in this. Because clearly Ms G did not want F to attend that school – something she appealed to the SEND Tribunal. I consider that whatever the actions of the school, F would still have been home educated for a time through Ms G’s choice.
  3. As I have explained above the law allows a parent to electively home educate a child, including one with SEN. There only expectation on the Council is that it checks the education is suitable. That is what it has done here.
  4. It is unfortunate the check of F’s home education took place during a period of COVID-19 restrictions, so no visit was undertaken in person. I also question if the visit should have taken place sooner given Council policy. But the Council is correct to say it was under no obligation to see F. And I have no grounds to find it would have come to any different conclusion on his education had it done so.
  5. I also agree that in this instance the Council was not under an obligation to involve Mr E in its enquiries. Because these will rightly focus on the parent giving the home education. The EWS service shared its findings with Mr E as soon as it became aware of his interest. That was reasonable and proportionate and I could not expect it to do more.
  6. I recognise that Mr E had genuine concerns about F being home educated. But it is not my role to question the professional judgments of Council officers who have reached evidence based decisions. So, I find no grounds to uphold this part of Mr E’s complaint.

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Final decision

  1. For the reasons set out above I have completed my investigation satisfied with the Council’s responses to Mr E’s complaint. While it was at fault for not consulting Mr E sooner on F’s EHCP it provided an appropriate remedy when he contacted it to alert it to that failure.

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Investigator's decision on behalf of the Ombudsman

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