Summary: Mr and Mrs Y complain the Council failed to provide suitable educational provision for their son, X. We did not find the Council at fault because Mr and Mrs Y were home educating X. We found the Council failed to correctly carry out an annual review meeting, which caused Mr and Mrs Y an injustice. To remedy this, the Council has agreed to apologise to Mr and Mrs Y, make them a payment and carry out a service improvement.

The complaint

1. The complainants, who I shall refer to here as Mr and Mrs Y, complain the Council failed to provide suitable educational provision for their son, X. Mr and Mrs Y say X, who has an Education, Health and Care Plan (EHC Plan), has not attended school for some time. More specifically, they complain the Council:
1. failed to provide X with any educational provision or the special educational provision detailed in his EHC Plan since September 2020;
2. failed to carry out and complete annual reviews for the 2020/21 and 2021/22 academic years. Mr and Mrs Y complain they requested an emergency annual review in September 2021, but the Council failed to carry this out; and,
3. failed to sufficiently respond to their complaint in a timely manner.
2. Mr and Mrs Y say X has missed out on an education since September 2020. They say the family has suffered financial loss by paying for the educational provision while X has been out of school.

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What I have and have not investigated

3. The law says 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) Mr and Mrs Y first complained to the Ombudsman in September 2021. This means we would not normally investigate matters before September 2020.
4. Mr and Mrs Y complain about matters dating back to late 2019. But, in this case, I consider that Mr and Mrs Y could have complained to the Ombudsman sooner if they had wished for us to consider matters before September 2020. I consider an investigation from September 2020 until April 2022 (when the second SEND Tribunal appeal was completed) is fair and proportionate.
5. But, during this time period, I cannot investigate the following parts of Mr and Mrs Y’s complaint:

• Mr and Mrs Y complain that, through the actions of certain Officers, the Council withheld information from the SEND Tribunal, which amounts to gross misconduct. This relates to the disclosure of the letter from X’s primary school dated 14 March 2021 saying it had withdrawn its offer of a placement. We cannot look at anything to do with the SEND Tribunal or the actions of Council officers relating to the Tribunal process. Additionally, we do not look at the alleged failings of individual officers: we look at complaints against the Council as a corporate body.
• Mr and Mrs Y complain the Council failed to name a suitable primary school placement in X’s Plan for the 2021/22 academic year. Mr and Mrs Y appealed to the SEND Tribunal about the placement named in X’s Plan. We, therefore, cannot investigate this part of their complaint as they have appealed about the matter complained of to the SEND Tribunal, which – unlike the Ombudsman - has the power to decide on the suitability of placements. (Local Government Act 1974, section 26(6)(a), as amended)

6. As explained, the law says we cannot investigate a complaint if someone has appealed to a tribunal, including the SEND Tribunal. Caselaw has established that this means the Ombudsman cannot investigate any matter complained of that is inseparable from any appeal made to the SEND Tribunal.
7. For this reason, I cannot investigate Mr and Mrs Y complaint that the Council failed to consult suitable alternative placements when it became aware that X’s primary school placement for the 2021/22 academic year had been withdrawn. Mr and Mrs Y say the primary school wrote to the Council about this on 14 March 2021, but took no action until August 2021 meaning X missed out on a suitable school placement. While the issue around time taken by the Council to consult school is not something the Tribunal could provide a remedy for, I find this part of Mr and Mrs Y’s complaint is inseparable from the central plank of their connected appeal (that being their appeal against the suitability of the placement named in Section I) and subsequent appeal to the Upper Tribunal (Administrative Appeals Chamber), which considered this issue directly. When deciding to dismiss the appeal, the Upper Tribunal decided Mr and Mrs X were not placed at a disadvantage because of the late disappearance of the primary school because it was a school they had objected to and wished for continued home-schooling for X.
8. Similarly, I consider the matters complained of in part a of the complaint to be inseparable from two SEND Tribunal appeals decided in August 2021 and April 2022. In both appeals, Mr and Mrs Y disputed the suitability of the placement named in Section I of X’s Plan and X did not attend the placements named. Mr and Mrs Y requested the Tribunal consider their request that X receive education otherwise than at school and provided an estimated cost for this. But, the Tribunal rejected this proposal in August 2021, which it reconfirmed in April 2022. The Tribunal found the Council had failed to identify or name a suitable school in both its decisions. But, caselaw has decided that the Ombudsman cannot investigate the consequences of the Council’s decision not to name a suitable placement in Section I, which would include any alleged failure by the Council to provide X with alternative provision or a personal budget for this.
9. This means I cannot investigate the above between the time that Mr and Mrs Y’s appeal right arose to the date of the SEND Tribunal decision. I, therefore, cannot investigate the matters complained of between:

• September 2020, when the first SEND Tribunal appeal was underway, and beginning of August 2021, when the Tribunal issued its decision, and
• between 21 October 2021, when the Council issued a final amended Plan triggering Mr and Mrs Y’s appeal rights, and April 2022 when the second appeal was completed. I can, however, investigate the period between 4 August and 21 October 2021.

10. Lastly, Mr and Mrs Y complain the Council failed to write an EHC Plan with outcomes that addressed X’s needs and failed to update Section K of the EHC Plan to reflect the full list of reports relied on. As a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every single question a complainant may have about what the organisation did. I have decided not to investigate these parts of Mr and Mrs Y’s complaint as we are unlikely to be able to achieve the outcome desired. I consider the statement of complaint, under the above “complaint” section, to be proportionate and focused on the key issues.

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The Ombudsman’s role and powers

11. 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)
12. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
13. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
14. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
15. 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.
16. If we are satisfied with an organisation’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

17. I spoke with Mr and Mrs Y about their complaint. I considered the information and documents that Mr and Mrs Y and the Council sent to me.
18. Mr and Mrs Y and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.
19. 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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What I found

Education, Health and Care Plans

20. A child with special educational needs 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 SEND Tribunal can do this.
21. The EHC plan is set out in sections which include:

• Section B: The child or young person’s special educational needs (SEN). 
• Section C: The child or young person’s health care needs.
• Section D: The child or young person’s social care needs.
• Section F: The special educational provision needed.  
• Section G: The health care provision needed.
• Section H1/H2: The social care provision needed.
• Section I: The name and/or type of school. 

Arrangements for reviewing an EHC Plan

22. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
23. Councils must complete an annual review within 12 months of the last review, or of the date the EHC plan was first issued.
24. For reviews meetings where a child or young person does not attend a school or other institution, councils must:

• invite the child’s parent or the young person, a council SEN officer, a health service representative and a council social care representative and give them at least two weeks’ notice of the date of the meeting;
• seek advice and information about the child or young person prior to the meeting from all parties invited and send any advice and information gathered to all those invited at least two weeks before the meeting; and,
• make sure there is a focus on the child or young person’s progress towards achieving the outcomes specified in the EHC plan, and on what changes might need to be made to the support provided to help them achieve those outcomes, or whether changes are needed to the outcomes themselves. Children, parents and young people should be supported to engage fully in the review meeting.

Special educational needs and disability Code of Practice: 0 to 25 years’ (‘SEND Code of Practice’), paragraph 9.177

25. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
26. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
27. 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. Where the council decides to amend a EHC plan, the right of appeal is only engaged when the final amended plan is issued.

Elective Home Education (EHE)

28. 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. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
29. The Department for Education (DfE) issued new guidance in April 2019 to reflect the growing concern about children being educated at home who may not be receiving a suitable education or who may be at risk of harm.
30. 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.
31. The 2019 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.
32. In circumstances where the child cannot attend school, the council should be offering alternative provision to reduce the likelihood that a child will end up without suitable education.

EHE and Special Educational Needs

33. Councils have a power, but not a duty, to provide support for example funding or therapy at home for children with SEN who are EHE. The SEN Code of Practice states that councils should fund the SEN needs of home-educated children where it is appropriate to do so.

What happened

34. I have set out a summary of the key events below. It is not meant to show everything that happened.

Scope of the investigation

35. Case law has decided that I cannot investigate any matter complained of that is inseparable from any appeal made to the SEND Tribunal. However, I have referred to SEND Tribunal decisions, where necessary, to understand the action taken by the Council and sequence of events.

Chronology

36. Mr and Mrs Y’s son, X, has special educational needs (SEN) and an EHC Plan.
37. In September 2020, X was in Year 5. He had been receiving education at home since November 2019, which Mr and Mrs Y had arranged.
38. At this time, Mr and Mrs Y and the Council were involved in a SEND Tribunal appeal. This was because Mr and Mrs Y had appealed against Sections B, F and I of X’s EHC Plan from June 2020. The Council had named Independent Special School One in the Plan. But, Mr and Mrs Y requested X receive education otherwise than at school (EOTAS) and requested a personal budget for this. They also asked the Tribunal to consider making recommendations about Sections C, G, D and H1/H2.
39. In March 2021, the Council heard from Independent Special School One that the School had withdrawn its offer of a place.
40. In May, Mr and Mrs Y chased the Council to complete X’s annual review as the previous one had been completed in June 2020.
41. In June, the SEND Officer wrote to Mr and Mrs Y to rearrange the scheduled annual review meeting and asked for suitable dates.
42. The SEND Officer chased Mr and Mrs Y for a reply.
43. In late June, Mr and Mrs Y told the SEND Officer they could no longer attend the annual review meeting arranged for 9 July. They asked the Council to carry this out in September instead
44. On 4 August, the SEND Tribunal issued its decision. It refused Mr and Mrs Y’s request for EOTAS. It ordered the Council to name the type of school, “mainstream school”, in Section I because a suitable school placement had not been identified.
45. In late September, Mr and Mrs Y complained to the Ombudsman.
46. Several days later, the Council sent Mr and Mrs Y a draft amended EHC Plan.
47. The Council sent out consultation letters to nine secondary schools for September 2022.
48. On 21 October 2021, the Council issued a final EHC Plan naming Primary School Two in Section I.
49. Mr and Mrs Y appealed to the SEND Tribunal against the naming of Primary School Two in Section I as well as Sections B and F. They requested EOTAS.
50. On 24 November, the Council issued a further Plan naming Secondary School Three as the placement X would transfer to in September 2022.
51. In early April 2022, the SEND Tribunal issued its decision. The Tribunal decided Primary School Two was not suitable for X. It also decided Secondary School Three was not suitable as a primary school, for the remainder of the 2021/22 academic year, given it was a secondary school. The Tribunal refused Mr and Mrs Y’s request for EOTAS. The Tribunal decided “mainstream primary school”, as the type of school it considered suitable, should be named in Section I given there was no appropriate educational placement for X.

Analysis – was there fault by the Council causing injustice?

Educational provision

52. Mr and Mrs Y complain the Council failed to provide X with any educational provision or the special educational provision (SEP) detailed in his EHC Plan (part a of the complaint). As explained above, I can only consider the period between 4 August and 21 October 2021. Mr and Mrs Y say X was no longer able to attend school as his needs were not being met, which had affected his mental and physical health. Mr and Mrs Y say they have instead had to arrange and fund his educational provision from their home. They say the Council has refused their requests for support, including by way of a personal budget.
53. But, based on the evidence I have seen, I do not find the Council at fault. This is based on the following:
1. the evidence I have seen shows that the Council had registered X as receiving elective home education (EHE) arranged by Mr and Mrs Y. This is supported by the information in X’s EHC Plans, the SEND Tribunal decision from August 2021, correspondence between the Council and Mr and Mrs Y confirming the situation as EHE, and internal correspondence between the Council’s SEND and legal teams. The Council told me that it had not taken enforcement action against Mr and Mrs Y because they were suitably home educating X;
2. as explained above, in choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs. I, therefore, do not find the Council at fault for refusing Mr and Mrs Y’s requests for a personal budget for his EHE;
3. I also do not find the Council at fault for refusing Mr and Mrs Y’s requests for a budget for EOTAS. This is because the Council considered it appropriate that X receive his education and SEP in a school setting. The Council, therefore, was not responsible for securing and funding the EOTAS package requested. This is a decision the Council was entitled to make. Without fault in how the Council reached its decision, I cannot say whether it was right or wrong; and
4. in both SEND Tribunal decisions from August 2021 and April 2022, Mr and Mrs Y requested EOTAS for X until he reached secondary school. Mr and Mrs Y told the Tribunal that they wanted a long transition to secondary school so that X only needed one transition. During the April 2022 appeal, the Tribunal said Primary School Two was one of five schools that said they could meet X’s needs. But, it is my understanding Mr and Mrs Y did not visit the other possible primary schools or name an alternative parental preference for a primary school. Instead, Mr and Mrs Y requested EOTAS again – through the educational provision they had arranged - and Secondary School Three to be named for the remainder of the academic year. Considering these later events, I find this shows Mr and Mrs Y’s position did not change between 4 August and 21 October 2021. They wished to continue to educate X at home and then for X to transition to secondary school.

Annual reviews for the 2020/21 and 2021/22 academic years

54. Mr and Mrs Y complain the Council failed to carry out and complete annual reviews for the 2020/21 and 2021/22 academic years (part b of the complaint).
55. During the 2020/21 academic year, Mr and Mrs Y and the Council were involved in a SEND Tribunal about the placement and content of X’s Plan from June 2020. When a SEND Tribunal appeal is ongoing, the annual review must still take place within 12 months of the last annual review. Based on the evidence I have seen, however, the Council failed to start arranging the annual review meeting until May 2021 after Mr and Mrs Y had chased it. But, the meeting did not take place until September 2021. I find this meant the Council failed to complete the annual review within the statutory timescales.
56. However, I find this fault did not cause Mr and Mrs Y a significant personal injustice. Mr and Mrs Y appealed against Sections B, F and I of X’s EHC Plan from June 2020. They also asked the Tribunal to consider making recommendations about Sections C, G, D and H1/H2. I find this meant the SEND Tribunal comprehensively reviewed X’s Plan, Mr and Mrs Y’s views, and the supporting evidence from professionals when making its decision in August 2021 and ordering any necessary changes. I am not persuaded an annual review during the time of the appeal would have led to a different outcome with X’s Plan.
57. In early September 2021, a Council SEND Officer held a virtual annual review meeting with Mr and Mrs Y. But, I find the Council failed to carry out the annual review meeting in line with the SEND Code of Practice guidance on reviews where a child, like X, does not attend a school. This is based on the following:

• the review meeting was cut short due to technical issues. But, I have seen no evidence that the Council rearranged the meeting to make sure Mr and Mrs Y and X’s views had been captured. I find this meant the Council failed to make sure Mr and Mrs Y were supported to engage fully in the review meeting. The record of the meeting shows very little information was gathered during the meeting, including X’s progress in the core subjects of maths, English and science. Instead, the Officer marked X’s levels in these subjects as unknown because Mr and Mrs Y were electively home educating him. In my view, the Council failed to consider X’s progress in these areas and his overall progress towards achieving the outcomes in his Plan.
• while Mr and Mrs Y were invited to the review meeting and a SEND Officer attended the meeting, the Council failed to invite a health service representative and a Council social care representative. The record of the review meeting shows the Council also failed to seek advice and information about X prior to the meeting from a health service representative and a Council social care representative and send any advice and information gathered to Mr and Mrs Y at least two weeks before the meeting. This is fault. On balance, it is likely that a lack of a joined up approach across the Council’s education team and its social care team on such annual reviews contributed to the fault here. This is supported by the Tribunal’s decision from April 2022 that “an up-dating social care assessment was not instigated expeditiously by the [Council]”. The Tribunal reminded the Council of the need to ensure co-ordination between its education and social care teams.

58. The fault identified here caused Mr and Mrs Y distress and frustration. They missed out on an annual review meeting by the Council that provided views and advice from all parties it was required to consult. This was especially important as the Council went on to name X’s secondary school in Section I of the Plan.
59. I find much of the injustice here was resolved through the subsequent SEND Tribunal appeal. This ensured Mr and Mrs Y’s view were fully heard. Three weeks after the Tribunal’s decision, the Council issued a final amended Plan, which is within the timescales for completing this. But, I do not find this fully remedied the injustice experienced and this has informed my recommendations below.
60. Following a reminder from the Tribunal in February 2022, the Council made attempts to meet with Mr and Mrs Y to carry out an updated social care assessment ahead of issuing the Plan. But, after a further complaint from Mr and Mrs Y, the Council accepted, in August 2022, that the assessment had not been completed and it had ‘lost sight’ of this. This is fault. This meant X missed out on an updated social care assessment ahead of transitioning to secondary school. It remains unclear whether the Council has now completed this assessment, which I have factored into my recommendations below.
61. In August 2021, the Council replied to a related complaint from Mr and Mrs Y that the Council refused to arrange an Irlen Sydrome assessment for X. In its complaint response, the Council said: “[As] Irlen syndrome is related to a person's vision which affects all areas of their life not just education it would normally fall under health's responsibility to source. … [A]s Irlen disease/syndrome is not yet recognised or properly defined as a medical condition in the UK it is not covered by the NHS for any assessment or treatment. Therefore in line with … Regulation 6(1) of the Special Educational Needs and Disability Regulations 2014 the local authority feel this [is not] a reasonable request as part of an EHC process … and so [the Council] is unable to agree to reimburse you for the assessment.” The Council has provided Mr and Mrs Y with clear reasons why it refused the assessment and was unable to reimburse them for the assessment sourced by them. This was a decision it was entitled to make. I do not find the Council at fault in its decision-making.

Timeliness of complaint responses

62. Mr and Mrs Y complain the Council failed to sufficiently respond to their complaint in a timely manner (part c of the complaint).
63. Based on the evidence I have seen, this part of the complaint relates to delays in the Council sending its stage two complaint response, which the Council accepted in December 2021 and apologised for. The stage two request by Mr and Mrs Y from August 2021 focused on matters that I cannot investigate (the actions of Council officers during the first SEND Tribunal appeal and their alleged withholding of Independent Special School One’s decision to withdraw its offer of a place). As I cannot investigate the substantive issue here, I am not able to consider the Council’s handling of this complaint.
64. Having considered the complaints correspondence between the Council and Mr and Mrs Y on the matters that I have investigated, I am satisfied the Council suitably responded to these and without undue delay. There was a significant amount of correspondence between the Council and Mr and Mrs Y. I find the Council provided clear and sufficiently detailed responses. I do not find the Council at fault.

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Agreed action

65. Within four weeks of my final decision, the Council has agreed to:
1. apologise in writing to Mr and Mrs Y for the fault causing injustice;
2. make Mr and Mrs Y a payment of £200 for the distress and frustration caused by the failure to correctly carry out the annual review meeting in September 2021 and complete an updated social care assessment; and,
3. report back on the outcome of the social care assessment. If this is still to be completed, the Council should complete the assessment now and provide a copy of the report to Mr and Mrs Y and the Ombudsman within the four week deadline.
66. Within two months of my final decision, the Council has also agreed to circulate a reminder to staff of the actions it must complete for review meetings where a child or young person does not attend a school or other institution, including when they are registered with the Council as EHE (as detailed in paragraph 24 above).
67. The Council should provide us with evidence it has complied with the above actions.

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Final decision

68. I have completed my investigation.
69. I do not uphold parts a and c of the complaint. This is because I have not seen evidence of fault by the Council causing injustice.
70. I have decided to uphold part b of the complaint. This is because I have seen evidence of fault causing injustice to Mr and Mrs Y. The above recommendations are suitable ways for the Council to remedy this, which it has agreed to.

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Investigator's decision on behalf of the Ombudsman