Summary: Mrs X complained the Council failed to deliver provision in her child, C’s Education, Health, and Care Plan while she attended school. Mrs X also complained the Council’s communication was poor and it failed to provide alternative provision or make amendments to C’s Education, Health, and Care Plan when she removed C from the school roll. The Council was at fault for failing to follow the code of practice and poor communication. This caused Mrs X confusion and frustration and put her to the time and trouble of complaining. I have not found the Council at fault for its considerations about C’s provision. The Council has agreed to my recommendations to remedy the injustice caused.

The Complaint

1. Mrs X complains the Council failed to deliver, secure, or put in place provision as specified in her daughter C’s Education, Health, and Care Plan (EHCP) while she attended school. She also complains the Council wrongly decided she was electively home educating her daughter when she removed her from the school roll due to safeguarding reasons. Mrs X said the Council had failed to amend C’s EHCP showing she was now receiving home education.
2. Mrs X said this has caused C to lose her educational provision and has had a damaging effect on her mental and physical health. She also says this has caused her distress, confusion and has put her to the time and trouble of complaining.

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What I have and have not investigated

3. The Council notified Mrs X it had decided to maintain C’s EHCP on the 4 February 2022. From this point, Mrs X had a right of appeal to the SEND Tribunal. I am also aware Mrs X appealed to the SEND tribunal on 27 April 2022. For these reasons, I have no jurisdiction to investigate Mrs X’s complaint from the point she could have reasonably appealed, as most of Mrs X’s complaint relates to the placement and contents of C’s EHCP.

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The Ombudsman’s role and powers

4. 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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)
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
8. 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.
9. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
10. 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

11. I spoke to and have considered the documents sent by Mrs X and made enquiries of the Council. I have read the information Mrs X and the Council provided about the complaint.
12. I have considered Mrs X and the Council’s comments on the draft decision before making this final decision.

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What I found

Education, Health, and Care Plan (EHCP)

13. A child with special educational needs may have an EHCP. This sets out the child’s needs and arrangements for meeting them.
14. The Council is responsible for securing the specified special educational provision for the child. This means making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the procedures.
15. These duties are non-delegable. Other than for the period when the emergency measures under the Coronavirus Act 2020 were in place, a council cannot discharge its duty by showing it tried but failed to put the support in place.

0-25 SEND Code of Practice

16. A review meeting must be held within 12 months of the date when the EHCP was issued, and then within 12 months of any previous review. Within four weeks of the review meeting, the local authority must decide whether it proposes to keep the EHCP as it is, amend the plan or cease to maintain the plan and notify the child's parents.
17. If the Council decides not to amend the plan or decides to cease to maintain it, it must notify the child's parent(s) of:

• The right to appeal that decision.
• The time limits for doing so.
• The requirements for the consideration of mediation should the parents wish to appeal; and
• The availability of information, advice and support and disagreement resolution services.

18. Section 10.32 of the SEND code of practice says where an EHCP gives the name of a school where the child will be educated, and the parents decide to educate at home, the Council is under no duty to make special educational provision set out in the plan. This is provided it is satisfied the arrangements made by the parents are suitable.

Elective Home Education

19. Elective home education is where parents choose to provide education for their children at home instead of sending them to school full-time.
20. Section 7 of the Education 1996 Act requires parents to provide an efficient, full-time education suitable to the age, ability and aptitude of the child and any special educational needs which the child may have.
21. Parents who choose to home educate take on financial responsibility for the cost of doing so, including the cost of any external assistance used such as tutors, parent groups or part-time alternative provision.
22. The Council is still under an obligation to conduct an annual review of the EHCP. The EHCP should set out the type of special educational provision that the Council thinks the child requires but it should state in a suitable place that parents have made their own arrangements under s.7 of the Education Act 1996.
23. Until a child is removed from the school roll, the parent is at risk of prosecution for not securing attendance at the school even if suitable home education is being provided.

The Council’s Policy

24. To assess whether home provision is suitable for the special educational needs of the child, parents will be asked to provide information regarding the home education provision. The local authority will only be relieved of its duty to arrange the provision specified in the child’s EHCP if it is satisfied the parent’s arrangements are suitable.
25. In cases where the Council and parents agree that home education is the right provision for a child with an EHCP, the plan should make clear that the child will be educated at home.

What happened

26. I have set out a summary of the key events below. It is not meant to show everything that happened.
27. Mrs X’s daughter, C, attends a mainstream school and has a diagnosis of autism, global developmental delay, and hyper mobility. C is mainly non-verbal. The Council are maintaining an EHCP for C.
28. Mrs X raised concerns throughout 2021 and into 2022 that C was not receiving her entitled provision as named in Section F of her EHCP.
29. The Council said it held a meeting with Mrs X, the school in November 2021 to discuss and look into her concerns. It completed a report which decided it was satisfied that C was making excellent progress and her named provision remained suitable.
30. Mrs X reiterated her concerns throughout November and December 2021. She said that since September 2021 there had been a significant reduction in support and provision provided to C. Mrs X said this had affected C’s mental and physical health, and she believed C had regressed in areas of her education.
31. The Council held an annual review meeting in early January 2022. Mrs X was present with representatives from the Council and C’s school. During the meeting Mrs X sought a change in placement and said she believed a specialist school would be suitable and encouraging of C’s needs.
32. Mrs X complained to the Council a few days after the annual review and continued to raise concerns it was not providing C’s provision. She specifically noted:

• She felt the Council had only considered C’s academic progress and had not considered her physical or mental health.

• C had to be referred to hospital, Mrs X believed this was due to missed provision.
• C had regressed both physically and academically and had suffered a ‘burnout.’
• There had been a decrease in C’s entitled physiotherapy sessions. Mrs X said she had to provide the provision to C herself.
• C could not access her teaching assistant while in class.
• C’s daily exercises were not consistent, and some delivered exercises were not contained in her plan.

33. A few days later, Mrs X told the Council she felt she had no choice but to withdraw C from her school and home educate her. She explained this would continue until the Council found her a suitable school placement that could meet her needs. Mrs X has home educated C since late January 2022.
34. The Council emailed Mrs X in early February. It said it had referred Mrs X’s request to a panel which had considered all relevant information and declined her request to move C to a specialist school.
35. On the same day it wrote to Mrs X and said it decided there were no significant changes to C’s needs and no grounds for a change of placement. It decided to maintain C’s EHCP without amendments. It also told Mrs X of her right to appeal to the SEND tribunal.
36. Mrs X replied the same day. She questioned why the Council had not amended the named placement in C’s EHCP. She explained the EHCP continued to name C’s school rather than showing Mrs X had elected to home school her and requested she be removed from the school roll.
37. The Council responded to Mrs X’s complaint in early February 2022. It recognised she had elected to home educate C. It also said:

• It wanted Mrs X to consider whether she wished to continue home educating C or whether she wanted the Council to consider a mainstream placement for her.

• It had escalated her concerns to the SEND provision evaluation officer.
• It worked directly with schools to offer support and guidance to ensure the required provision and support was provided.

38. Mrs X replied the following day and asked the Council to escalate her concerns to stage two of its complaint’s procedure.
39. Throughout March and April 2022, the Council consulted with two schools to secure a placement for C. The Council said it had received responses from the schools which questioned whether they could support C’s needs.
40. The Council responded to Mrs X’s complaint in April 2022. It reiterated much of its Stage One response. It apologised to Mrs X for the confusion it had caused when dealing with her request to remove C from the school roll. It advised her that as C had an EHCP, Mrs X should have provided it with details of the proposed educational arrangements for C. It had not amended C’s EHCP which still named her previous school as delivering provision. It said it had discussed the situation with Mrs X in March and had tried to address her concerns.
41. Mrs X complained to the Ombudsman in April 2022.
42. Mrs X also appealed to the SEND tribunal in April 2022.
43. In its response to my enquiries, the Council admitted it had not followed due process or procedure when considering Mrs X’s request to home educate C. It has offered to apologise to Mrs X and C for the errors in the process. It said:

• While C remained at school, it had not sought alternative provision as it was satisfied C had access to her entitled provision which was delivered at the school.
• It had not sought alternative provision from C when she stopped attending school as Mrs X had confirmed she had elected to home educate.

• On receiving confirmation Mrs X wanted to home educate C, it should have checked the suitability of Mrs X’s arrangements to home educate C. It could provide no evidence it had done this.
• If satisfied, it should then have amended C’s EHCP to change her school placement to home education, giving Mrs X a further right of appeal if she remained unhappy with the placement.
• Its communication with Mrs X had been poor and it had provided incorrect advice to her about taking C off the school roll. It believed this had caused her confusion and frustration.
• There had been a misunderstanding about differences when pupils had an EHCP and were home schooled and when a pupil did not have an EHCP.
• Mrs X told the Council she was in contact with its Elective Home Education Team and was providing structured home education and therapies for C.

Analysis

44. At the heart of this complaint is Mrs X’s belief that C was not provided with her entitled provision. The Council holds a different opinion and said it was satisfied C received her entitled provision and achieved her outcomes. The Council’s notes show it considered and discussed Mrs X’s concerns. It held several meetings with Mrs X and the school, attended C’s annual review, considered the views and reports presented and offered the school advice about communication with Mrs X. The Council took account of all the relevant information and took reasonable steps to satisfy itself C had received her entitled provision. Its decision was based on the professional judgement of its officers. This was a decision the Council was entitled to make, and I have found no fault in how it was made. Therefore, I cannot question the outcome.
45. The Council told Mrs X of her right to appeal its decision to maintain C’s EHCP without amendments in February 2022. If Mrs X disagreed with the decision, she could have appealed to the SEND tribunal at this time, and this is what we would have expected. Mrs X has now exercised her appellant rights to the SEND tribunal. By law, I have no jurisdiction to investigate Mrs X’s complaint because it relates to the contents and named placement in C’s EHCP.
46. I have seen evidence Mrs X told the Council on several occasions she had elected to home educate C while it considered a suitable placement. The Council in its response to my enquiries accepts it did not follow the SEND code of practice when dealing with this and was unclear in its response and communication. This was fault and the Council accepts it caused Mrs X confusion, frustration and put her to the time and trouble of complaining. The Council has offered to apologise to Mrs X, and C. I appreciate this goes some way to remedying the injustice caused, however, I also recommend a payment of £200 in recognition of the injustice caused. The Council has agreed to this.

Agreed action

47. By 6 January 2023 the Council will:

• Apologise to Mrs X and C for failing to adhere to the code of practice and for poor communication.
• Pay Mrs X £200 for causing confusion, frustration, and putting her to the time and trouble of complaining.

48. The organisation should provide us with evidence it has complied with the above actions.

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Final decision

49. The Council was at fault for failing to adhere to the code of practice and for poor communication with Mrs X. This caused her confusion, frustration, and put her to the time and trouble of complaining. I do not find fault with the Council for how it investigated Mrs X’s complaint about C’s provision. The Council has agreed to my recommendations to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman