Summary: Mrs X complained the Council failed to provide her son, F with education and provision in line with his Education, Health and Care Plan. The Council failed to provide therapy and provision and did not put in place adequate alternative provision for F between March and October 2021. There was no fault from October 2021 onwards as Mrs X chose to Electively Home Educate F from this point. The Council should pay Mrs X a total of £1950.00 to recognise F’s loss of educational provision and for the distress and time and trouble caused to her.

The complaint

1. Mrs X complains the Council failed to provide her son, F, with an education and provision in line with his Education, Health and Care (EHC) Plan between March 2021 and April 2022. Mrs X says F was out of school during this period and the Council failed to put in place alternative provision.
2. Mrs X says F has missed on educational and social development which has caused him upset and distress. She says the matter has caused her distress, frustration and time and trouble.

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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 an organisation’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 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.
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. 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)
8. 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

9. I spoke to Mrs X about her complaint and considered information she provided.
10. I considered the Council’s response to my enquiry letter.
11. Mrs X and the Council had an opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Education, Health and Care (EHC) Plan

12. 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.
13. Councils are responsible for making sure all the arrangements set out in in the EHC Plan are put in place.
14. The Council has a legal duty to ensure the educational and social care support set out in a final EHC plan is delivered. This duty is non-delegable. The local health care provider will have the duty to deliver the health care provision.

Due diligence

15. The Ombudsman does recognise it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman does consider that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;

• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.

Alternative provision

16. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.
17. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
18. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
19. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

The SEND Tribunal

20. Certain SEN decisions 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.

Elective home education (EHE)

21. 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.
22. Where a parent withdraws a child with an EHC plan from school to home educate them then the Council no longer has an obligation to provide the special educational provision in the EHC plan. This is because the parents are deemed to be making their own suitable alternative arrangements.
23. Councils have a power, but not a duty, to provide support, such as funding or therapy at home. Guidance states councils should fund the SEN needs of home-educated children where it is appropriate to do so.

What happened

24. Mrs X has a son, F who has special educational needs (SEN) including autism and anxiety. He had an EHC Plan and in early 2021 attended a special school (School A) in year 10.
25. F’s EHC Plan included weekly Speech and Language Therapy (SALT), daily provision in a specialist setting, weekly Cognitive Behavioral Therapy (CBT), therapeutic input and a weekly session with an Occupational Therapist (OT).
26. F’s annual review was due in March 2021. In preparation for the annual review Mrs X had submitted a ‘family views’ form to School A. Within this Mrs X raised concerns that F was not receiving much of his therapy provision in line with his EHC Plan. She said this was having an impact on F’s ability to cope in School A and he had not attended for large parts of the autumn and spring term. She said the lack of SALT, OT and CBT provision was causing him to regress in his education. School A rescheduled F’s annual review until after the Easter holidays. There is no evidence the Council took any steps to obtain copies of paperwork from School A or emphasise to it the importance of complying with annual review timescales.
27. The annual review took place in June 2021. Due to the breakdown in relationship between Mrs X, F and School it was decided F would stop attending and would receive education at home via the Council’s Alternative Provision Service. The Council said it would start consulting to find an alternative placement for F. It notified Mrs X in a letter that it intended to amend F’s EHC Plan.
28. In August 2021 Mrs X complained to the Council. She complained that the alternative provision in place was unsuitable. She said F was only getting 90 mins face to face tuition and was not receiving any of his therapy provision.
29. The Council responded to Mrs X in September 2021. It acknowledged the breakdown of F’s placement at School A and said it was working to secure a new setting as quickly as possible. The Council said the alternative provision in place was a bespoke arrangement but said it would consider other options along side it. The Council said it was looking for a provider to start F’s CBT provision.
30. Mrs X was unhappy with the response and asked the Council to consider her complaint at stage 2 of the complaints procedure.
31. In early October 2021 the Council issued F’s amended EHC Plan naming School B as his placement. The letter included details about Mrs X’s right of appeal to the SEND tribunal.
32. Records show F attended School B for two days, however it became apparent to Mrs X that it was not a suitable setting for F. In mid-October Mrs X wrote to the Council informing it that she had decided to take responsibility for F’s education and would educate him at home. Mrs X asked the Council to de-register F the School B.
33. From October onwards Mrs X has educated F at home. Records show the Council agreed a personal budget with Mrs X in January 2022 which included funds to pay for online learning. The budget also included funds for OT, SALT and counselling.
34. The Council provided a final response to Mrs X’s complaint in December 2021. The Council said it only became aware of F’s breakdown at School A and the lack of provision in the 2021 summer term. It said the annual review which took place in November 2020 did not raise any concerns. However, the Council accepted there was no evidence it had ever checked with the school whether it was providing provision in line with EHC Plans. It said it was clear F did not receive his EHC Plan provision from June 2021 onwards. The Council acknowledged F had missed his SALT, OT and CBT provision since he stopped attending School A.
35. The Council apologised for the identified faults and offered Mrs X a payment of £1950.00. This payment included an acknowledgement for the loss of OT, SALT and CBT provision and to recognise the time and trouble Mrs X spent pursuing her complaint.
36. Mrs X remained unhappy and complained to us.
37. Since complaining to us the Council has undertaken a re-assessment of F’s EHC needs which included new SALT and OT reports. It also consulted with a post-16 college. The Council issued F’s amended final EHC Plan in April 2022. F remains educated at home with funding via the personal budget.

My findings

38. The Council said it became aware of F’s breakdown with School A during the summer term following the June 2021 annual review. It has already accepted and apologised that it did not carry out any checks or due diligence with School A around whether it was providing F’s provision, which was fault. However, Mrs X had already raised concerns on her ‘family views’ form in March 2021 prior to the planned annual review which School A delayed. There is no evidence the Council took any action with School A to either obtain annual review paperwork or question the reason for non-compliance with annual review timescale. That was fault. Had it done so it would likely have been aware of Mrs X’s concerns earlier.
39. Following the June annual review, the Council put in place alternative provision for F at home. However, this was only 90 minutes per week which Mrs X raised concerns with as being too little. While we do not expect one-to-one tuition to be the same amount as hours as if taught in a classroom, the provision must be suitable to the child’s age and aptitude. There is no evidence the Council reviewed F’s provision and given Mrs X’s concerns and the fact he was starting his GCSEs, on balance, it is unlikely 90 mins face-to-face tuition each week was suitable alternative provision which was fault.
40. The Council has acknowledged that F did not receive OT, SALT and CBT in line with his EHC Plan since June 2021. However, on balance, this was the case at least since March 2021 when Mrs X raised her concerns prior to the planned annual review. This continued up to it issued his amended plan in October 2021. The failure to ensure F received his OT, SALT and CBT in line with his EHC Plan during this period was fault.
41. The Council issued F’s amended EHC Plan in October 2021, naming School B as his placement. At this point Mrs X had a right of appeal to the SEND tribunal which she did not exercise. Mrs X decided to remove F from School B and EHE. At this point the Council no longer had a legal duty to provide F with the provision, including therapy in line with his EHC Plan. However, in line with the Code it has provided Mrs X with a personal budget to fund provision and therapy at home. So, there was no fault from October 2021 onwards.
42. The Council has already apologised to Mrs X and has offered her £1850.00 to recognise F’s loss of provision from June to October 2021, plus a further £100 to acknowledge Mrs X’s time and trouble pursuing the complaint. I consider the Council was aware of Mrs X’s concerns about the lack of provision for F from March 2021 onwards. However, I consider its offer is in line with our guidance on remedies and is sufficient to remedy the injustice caused to F between March and October 2021 when it failed to provide therapy in line with his EHC Plan and did not put in place adequate alternative provision.

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Agreed action

43. Within one month of the final decision the Council agreed to:
• pay Mrs X £1850.00 to recognise the loss of educational provision for her son, F between March and October 2021 when it failed to provide provision and therapy in line with his EHC Plan and failed to put in place adequate alternative provision. Mrs X should use the payment for F’s benefit as she sees fit.
• pay Mrs X £100 already offered to recognise the distress and time and trouble the matter has caused her.
• explain what action it has taken to ensure its officers monitor and checks with schools around whether they are providing provision in line with EHC Plans following complaints and concerns from parents and carers.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman