Summary: Mrs X complained the Council failed to ensure her daughter, F, received provision in line with her Education, Health and Care (EHC) Plan after it was issued in June 2021. The Council was at fault because it failed to carry out checks with the school following Mrs X’s complaint of non-provision. On balance, it is likely that F missed out on some of the provision in her plan between June and September 2021. There was no fault from September 2021 onwards as Mrs X chose to electively home educate F from that point. The Council agreed to apologise to Mrs X and pay her £300 to acknowledge F’s loss of educational provision and for the distress and uncertainty caused.

The complaint

1. Mrs X complains the Council failed to ensure her daughter, F, received provision in line with her Education, Health and Care (EHC) Plan between June and September 2021. Mrs X says this led to her educating F at home without any support.
2. Mrs X says the matter has caused a deterioration in F’s mental health and a loss of educational and social development. She said it has also caused her distress and uncertainty.

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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 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)
5. 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.
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. 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 the opportunity to comment on the draft decision. I considered comments received 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.

The SEND Tribunal

15. If a parent disagrees with the content of an EHC Plan, they have a right of appeal to the SEND Tribunal. This includes the provision set out in section F and the named placement in section I. 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.

Due diligence

16. 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.

Elective home education (EHE)

17. 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.
18. Where the parent of a child with an EHC plan withdraws them from school to home educate them, the Council no longer has an obligation to provide the special educational provision in the EHC plan. This is because the parent is deemed to be making their own suitable alternative arrangements.
19. Councils have a power, but not a duty, to provide support, such as funding or therapy at home. Guidance states councils should fund the special educational needs (SEN) of home-educated children where it is appropriate to do so.

What happened

20. Mrs X has a daughter, F of primary school age who has SEN and autism. At the start of June 2021, the Council issued an EHC Plan for F following orders from the SEND tribunal.
21. In mid-June 2021 Mrs X contacted the Council stating F’s school was not delivering some of the provision set out in her plan. This included:
• Lunchtime meet and greet staff
• No lunch club in place
• Class notes not supplied
• None of the equipment requested by the Occupational Therapist was in place
• F’s typing skills course not implemented.

Mrs X further explained that staff were not checking with F about toileting issues which had resulted in her not using the toilet and arriving home in discomfort. Mrs X said she had raised the matter with F’s school and after initially refusing to discuss the matter, it agreed to a meeting.

22. The Council acknowledged Mrs X’s concerns and told her the first point of call if she remained unhappy after the meeting was to complain to the school. Alternatively, it said to let it know if she wished F to attend a different school setting.
23. Records show Mrs X emailed the school after the meeting. The email shows Mrs X was happy to hear how F had got on at school and about the school’s plans to implement provision in the future. Mrs X noted plans to catch up with the school before the summer holidays to ensure F had a smooth transition for the start of the 21/22 academic year. There are no records of Mrs X contacting the Council any further about the matter.
24. In early September 2021 Mrs X wrote to F’s school and the Council to inform them that she had decided to educate F at home, in line with relevant law. Mrs X asked the school to de-register F from the school roll with immediate effect.
25. Mrs X complained to the Council at the end of September. She complained the Council failed to ensure delivery of F’s EHC Plan since it was finalised in June 2021. Mrs X said she had de-registered F from school because the EHC Plan did not fully recognise F’s needs and the Council had used old assessments from 2020 to form the plan.
26. The Council held a mediation meeting with Mrs X in October 2021. The home education team then visited Mrs X and confirmed F was receiving suitable home education. Mrs X was told to contact the home education team with any further concerns or queries.
27. At the end of October the Council provided Mrs X with its stage 1 complaint response. It said it was satisfied F’s school was able to deliver the provision set out in the EHC Plan and had offered support when Mrs X decided to de-register F. It said Mrs X did not raise any issues about the reports used during the EHC assessment process or include any relevant comments when it issued the draft plan.
28. Mrs X remained unhappy and asked the Council to consider her complaint at stage 2. Mrs X provided correspondence with F’s school detailing the provision which was not in place. She further complained about a lack of suitable schools in the area for children with autism.
29. The Council sent its final response to Mrs X in February 2022. The Council said it had no reason to believe F’s school was not providing provision in line with the EHC Plan although it accepted it had no evidence to support this. It said the SEND team would work with the school to complete a section F checklist to ensure that provision is available should she return to school. The Council said a lack of specialist schools for children with autism did not mean mainstream schools do not cater for children with autism.
30. Records show the Council issued an amended EHC Plan for F in March 2022. Section I stated F should attend a mainstream primary school but F’s parents had chosen to deliver home education at their own expense.
31. Records show that in March 2022 Mrs X requested a personal budget from the Council to deliver F’s provision at home. The Council said it considered Mrs X’s request but decided a personal budget was not appropriate as in its opinion, F was receiving suitable education at home already.
32. Mrs X remained unhappy and complained to us.

My findings

33. Part of Mrs X’s complaints to the Council was that F’s EHC Plan did not meet her needs and that it the plan was made using old assessments and reports. If Mrs X was unhappy with the provision set out in section F and how the Council decided on that provision then she had a right of appeal to the SEND tribunal at the point the Council issued the final plan. Therefore, I have not looked at these elements any further.
34. Mrs X raised concerns with a lack of provision in June 2021. The Council’s duty to ensure the educational and social care support set out in a final EHC plan is delivered is non-delegable. We expect councils to carry out due diligence when they receive complaints about non- delivery of provision. The Council made no enquiries with the school about F’s provision at the time, which was fault. Instead, the Council told Mrs X to complain to the school. That was also fault. As the Council did not carry out checks, I do not know how much of F’s provision was not in place. However, based on the concerns raised by Mrs X, I consider that on balance, it is likely that some of the provision in F’s EHC Plan was not in place between June and July 2021 and for the first week of the September term prior to Mrs X’s decision to de-register F. This caused F an injustice.
35. Mrs X de-registered F from school in September 2021. At this point the Council no longer had a legal duty to provide F with the provision in her EHC Plan. Records show the Council has carried out checks to ensure Mrs X is providing F with a suitable education and is satisfied that is the case. It also considered Mrs X’s request for a personal budget but decided it was no appropriate to do so. The Council was not at fault following Mrs X’s decision to home educate F.

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Agreed action

36. Within one month of the final decision the Council agreed to:
• Apologise to Mrs X to acknowledge the frustration and uncertainty caused to her when it failed to carry out checks with F’s school when she reported that some of F’s special educational provision was not in place.
• Pay Mrs X £300 to acknowledge F’s loss of provision in line with her EHC Plan between June and July 2021 and the first week of the September 2021 term. Mrs X should use this money for F’s educational benefit.
• Remind relevant staff to carry out due diligence with schools when it receives complaints that provision listed in EHC Plans is not in place. It will also remind relevant staff they should not refer complainants to the schools’ complaints procedure when receiving these complaints.
37. The Council will provide us with evidence it has completed these actions.

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Final decision

38. I 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