Summary: Ms B says the Council delayed seeking a specialist school placement for her son, failed to ensure her son received education and delayed issuing her son’s education, health and care plan following a review. There was some delay seeking a placement and in issuing the education, health and care plan. The Council failed to ensure Ms B’s son received education for part of the period. An apology, payment to Ms B and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Ms B, complained the Council:
• delayed seeking a specialist school placement for her son when it agreed to do so in July 2021;
• failed to ensure her son received education while the Council sought a placement; and
• delayed finalising her son’s education, health and care plan (EHCP) following the October 2021 review.
2. Ms B says the Council’s actions have caused her and her family significant distress and resulted in her son missing out on education.

Back to top

The Ombudsman’s role and powers

3. 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)
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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)
5. 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)
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)

Back to top

What I have and have not investigated

7. I have investigated Ms B’s concerns about what has happened since July 2021. I have not investigated Ms B’s concerns about any failure to provide education between 2019 and 2021. That is because the matters complained about happened too long ago and Ms B had a right of appeal about the type of education named in section I of her son’s EHCP.

Back to top

How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and Ms B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
9. Mrs B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

What should have happened

11. Section 19 of the Education Act 1996 says local authorities are responsible for the provision of suitable education for children of compulsory age who, 'by reason of illness, exclusion or otherwise' may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child's age, ability and aptitude, including any special needs. The provision may be part-time where the child's physical or mental health means full-time education would not be in their best interests.
12. 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.
13. 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.
14. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. ('Out of school, out of sight?' July 2022). We made six recommendations. Councils should:
• consider he individual circumstances of each case and be aware a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) - even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary;
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
15. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible, therefore, retaining oversight and control to ensure duties are properly fulfilled.
16. A child with special educational needs may have an EHCP. An EHCP describes the child's special educational needs and the provision required to meet them.
17. The procedure for assessing a child's special educational needs and issuing an EHCP is set out in regulations and Government guidance.
18. An EHCP should name the school, or type of school, the child will attend. Councils must consult with schools before naming them in a child's EHCP.
19. 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 EHCP.
20. Statutory guidance 'Special educational needs and disability Code of Practice: 0 to 25 years' (code of practice) sets out the process for carrying out EHC assessments and producing EHCPs. It deals with reviewing plans as follows.
21. Councils must review an EHCP at least every 12 months. The first review must take place within 12 months of the date when the EHCP was issued, and then within 12 months of any previous review. They may carry out a review earlier.
22. The review meeting should consider how appropriate the EHCP is in the light of the child or young person's progress or any changes of circumstances.
23. The Council must write to the child's parent or the young person within four weeks of the review meeting to say whether it proposes to keep the EHCP as it is, amend it or end it.
24. If the Council decides not to amend the EHCP it must write to the parent or the young person with its decision and tell them about the right of appeal.
25. If the EHCP needs to be amended the Council should start the process of amending it without delay. It must:
• send the child's parent or the young person a copy of the EHCP with details of the proposed amendments and any evidence it has supporting the amendments;
• tell them of their right to ask for a particular school or other placement to be named in the EHCP and advise where they can find information about placements available;
• give the parent or young person at least 15 days to make representations on the proposed changes or request a particular school.
26. If the Council decides to amend the EHCP following the representations it must issue the final amended EHCP within eight weeks of the original amendment notice. It must tell the parent or young person about their right of appeal.
27. An EHCP must be reviewed and amended in sufficient time before a child or young person moves between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools.

What happened

28. Ms B began providing home education to her son in 2019. At that point her son had an EHCP which said a mainstream placement was appropriate but Ms B had chosen to electively home educate him.
29. In July 2021 Ms B asked the Council to look for a specialist school for her son and the Council agreed.
30. The Council held an annual review of the EHCP in October 2021.
31. Ms B visited school A in October 2021 and confirmed she was happy for the Council to consult the school. The Council did that in November 2021. In December 2021 school A told the Council it could not provide Ms B’s son with a place as it could not provide for his care needs.
32. Ms B’s MP contacted the Council on her behalf in January 2022. Ms B’s MP told the Council Ms B was funding private tutors for her son but was struggling financially to do so. The MP told the Council Ms B was asking for some financial support.
33. Later that month the Council discussed with Ms B the possibility of it funding a health professional to help her son with his hygiene at school A if the school agreed. The Council later said it would explore other suitable education settings if Ms B no longer wanted to home educate her son.
34. In March 2022 Ms B asked the Council for its proposals for her son’s education. In response the Council said it could explore the option of a healthcare assistant at school A or a return to mainstream school. Ms B did not consider either of those options suitable for her son.
35. In April 2022, when responding to Ms B’s MP, the Council said it could fund installation of a wash and dry toilet at school A for Ms B’s son. That was the same as the toilet Ms B was having installed at her home. The Council told Ms B’s MP if Ms B no longer wanted to electively home educate her son she should contact the Council.
36. In June 2022 Ms B accepted the proposal for wash and dry facilities at school A. Ms B said the Council should have explored that option earlier and she had never wanted to home educate her son. The Council contacted the school A to see if it would agree to the Council funding the wash and dry facilities.
37. The Council issued a draft EHCP on 15 June 2022 along with a further draft on 26 July.
38. In July 2022 school A agreed to the Council’s proposal about the wash and dry facilities. In September following a further consultation school A said it could offer Ms B’s son a place at the school.
39. The Council liaised with the occupational therapist and asked for input on the transition plan for Ms B’s son. The plan at that point was for him to become accustomed to using the wash and dry toilet at home before attending school A in person. The occupational therapist told the Council though the installation of the toilet at home had been delayed.
40. The Council issued a further draft EHCP on 20 September.
41. School A confirmed in September 2022 it had ordered the wash and dry toilet and in November 2022 confirmed the toilet had been delivered. The Council contacted Ms B to tell her that and asked for dates for her availability so transition meetings could begin. In response Ms B told the Council school A had said the toilet had been installed in the wrong location and would need to be relocated. Ms B also said her home toilet had not yet been installed.
42. The Council issued a further draft EHCP on 15 November.
43. The first transition meeting took place on 21 December, with the plan being to meet monthly.
44. In January 2023 school A placed Ms B’s son on its roll. Ms B did not know about that and continued to fund online tuition for her son.
45. A further transition meeting took place on 26 January. School A made arrangements at that meeting for its staff to begin outreach to Ms B’s son, starting with a fishing session. Ms B confirmed at that meeting the wash and dry toilet had not been installed in her home yet.
46. A further transition meeting took place on 23 February. Ms B agreed to arrange a visit to the school with her son to look around.
47. The Council issued a further draft amended EHCP on 11 April.
48. In April Ms B asked the Council why she still had to pay for her son’s education when the latest EHCP stated his start date at school A was 5 January 2023. Ms B said the Council had told her at the meeting on 26 January when her son was on the roll of the school his education would be paid for. Ms B also said when she visited the school in March 2023 the wash and dry toilet was not completed. In response the Council told Ms B it had arranged a phased transfer beginning with outreach sessions. The Council said the plan could be amended to include online learning and this would be discussed at the transition meeting the following day.
49. A transition meeting took place on 20 April. At that meeting the outreach arrangements were agreed. The school also agreed to visit Ms B’s son to provide him with schoolwork to complete.
50. Later in April Ms B raised concerns the draft EHCP was now outdated. Ms B also asked the Council about education other than at school as her son was saying he did not want to go to school A. The Council suggested school A could bring in outside agencies now her son was not home educated. Ms B also raised concerns about the toilet at the school not being completed and her son not receiving any education except that which she had organised.
51. On 3 May 2023 the Council issued a final EHCP. That named school A in section I.
52. Ms B contacted the Council and school A again in May to raise concerns about the transition arrangements not being in place and her son not receiving any education despite being on the school roll. In response school said it needed more information about the levels Ms B’s son was working at before it could identify work to set for him.
53. The Council discussed the outstanding issues with school A at the beginning of June. School A told the Council the toilet would be painted white, at Ms B son’s request, over the summer period.
54. A transition meeting took place on 26 June. The staff member attending from school A agreed to discuss with the managers of the school whether it could fund the online tutors Ms B was paying for pending him starting at the school. School A agreed to increase the timetable by adding another session from September 2023 and agreed to consider the possibility of introducing science as a subject. Following that meeting school A agreed to take over the funding of the online tutors.
55. Ms B’s son continues to receive an outreach package with the intention of him starting at the school when he is able to do so. That outreach package includes a BTEC vocational award level 1 in animal care. School A is also currently funding maths and english online tutoring as an interim arrangement until Ms B’s son can access the school. A further transition meeting was planned for September 2023 to review progress and support integration into the school.

Analysis

56. Ms B has concerns about the Council’s actions in 2019 when it named a mainstream school placement as an appropriate placement for her son in the section I of her son’s EHCP. Ms B says she never wanted to home school her son but felt she had no option but to do so as the Council failed to take into account her son’s care needs when deciding a mainstream school was appropriate. I am not investigating this part of the complaint. That is because if Ms B had concerns about the type of school named in section I she had a right of appeal in relation to that point. It is therefore outside the Ombudsman’s jurisdiction.
57. I have exercised the Ombudsman’s discretion to investigate the period from July 2021 onwards. That is because that is the point at which the Council agreed to seek a specialist school placement for Ms B’s son.
58. Ms B says the Council delayed seeking a specialist school placement for her son despite agreeing to do so in July 2021. The evidence I have seen satisfies me in July 2021 the Council agreed to look for a specialist school, following representations from Ms B who was electively home schooling her son at that point. I have seen no evidence though the Council issued any consultations to specialist schools until it consulted school A in November 2021, after Ms B had visited. Given the Council had agreed to consult for a specialist school in July 2021 I consider the Council at fault for failing to do so until November 2021. I consider that likely delayed the overall process by two months, given schools were closed at the point at which the Council agreed to consult school A.
59. I understand Ms B’s concern about what has happened since December 2021, when school A initially decided it could not offer her son a placement. That was because the school did not consider it could provide for Ms B son’s care needs. Ms B notes the Council failed to consult further schools and her son has still not started school despite the fact it is now September 2023.
60. However, the evidence I have seen satisfies me the reason the Council did not look for an alternative school placement is because it concentrated on working with Ms B and school A to identify a solution for Ms B’s son’s care needs to enable him to attend school A, rather than trying to find an alternative placement. I do not criticise the Council for that given Ms B has been clear she could not find any placement for her son which would provide for his care needs. I therefore consider it likely, on the balance of probability, if the Council had approached other schools it would have experienced similar difficulties. In those circumstances I do not criticise the Council for continuing to work with school A to identify a way forward to address Ms B’s son’s care needs so he could attend the school. Indeed, I note proceeding in this way enabled the Council to secure a place for Ms B’s son at school A in September 2022.
61. I am aware that more than 12 months later Ms B’s son has still not started at the school. I am satisfied though this is because all parties recognised from the beginning it would be a slow process of reintegration into school for Ms B’s son as he had not attended a school for more than three years. I am satisfied as part of that school A has taken part in transition meetings with Ms B and the Council to plan for her son’s attendance at school. While there were some delays installing the toilet required for Ms B’s son to attend this is now available for him but he is still not in a position to start at the school. I therefore do not consider it likely the delays around installing the toilet and completing the works to the room resulted in any additional delay.
62. Ms B raises concerns the Council failed to put in place any education provision for her son once it agreed to seek a specialist school placement. At the point at which the Council agreed to seek a specialist school placement Ms B was electively home educating her son. I recognise Ms B disputes whether she ever willingly agreed to home educate her son. However, as I said in paragraph 56, I cannot consider what happened in 2019 as the EHCP issued at that time stated Ms B had chosen to electively home educate her son. If Ms B disagreed with that she would have needed to appeal.
63. As Ms B was electively home educating her son in July 2021 and the EHCP in place at that point stated elective home education in section I the Council was not responsible for ensuring Ms B’s son received education. Only if Ms B had made clear to the Council she could no longer electively home educate her son would the Council have had a responsibility to put education in place.
64. I appreciate Ms B believes the Council should have taken over funding of the online tuition she was paying for. However, as this was elective home education the Council was not responsible for those costs. Given Ms B’s MP contacted the Council in January 2022 though to say Ms B was struggling to pay for the education provision for her son I would have expected the Council to liaise with her to see whether she still wanted to electively home educate him. Then, if Ms B did not, as she later said, the Council could have considered the option of alternative provision.
65. I do not consider it likely though the Council would have offered at that point to take over the costs of the education provision Ms B was paying for. That is because, as I have made clear, this was a home education arrangement and the Council is not responsible for funding that. I consider it more likely, on the balance of probability, if Ms B had said she could no longer home educate her son the Council would have offered her alternative provision until her son could take up the place at school A. Given Ms B raised concerns about different tutors providing education to her son in 2023 I consider it unlikely Ms B would have accepted alternative provision rather than waiting for the school placement to begin. I therefore do not consider Ms B’s son missed out on alternative provision or education between July 2021 and January 2023 due to fault by the Council, when school A placed him on its roll.
66. From the point at which Ms B’s son was placed on school’s A’s roll though Ms B was no longer home educating her son. School A then had the responsibility to put in place education provision as part of the transition leading to Ms B’s son starting the school. From that point the Council was responsible for any failure to provide education. It is clear from the documentary evidence school A put in place some transition arrangements for Ms B’s son from February 2023. However, there is no evidence the school put in place any education provision for Ms B’s son until the end of June 2023 and it then took over responsibility for funding the online tuition for him in July 2023. I am satisfied the Council knew Ms B was continuing to fund online tuition for her son despite the fact he was on the roll of school A because she told the Council several times. The Council also knew Ms B’s son required a slow transition before he could start at the school. I am therefore concerned the Council failed to take action to ensure school A put in place some academic education for Ms B’s son on an outreach basis between January and June 2023. Failing to do that is fault.
67. While Ms B’s son did not miss out on education during that period I am satisfied this was only because Ms B continued to fund online tutors. Ms B should not have had to do that from the point at which her son was added to school A’s roll as he was no longer homeschooled and all parties accepted he was not ready to start at school A. To remedy that I recommended the Council apologise to Ms B, pay her £500 to reflect her distress and refund the costs she incurred educating her son between January and June 2023. The Council has agreed to my recommendations.
68. Ms B says the Council delayed finalising her son’s EHCP following the review in October 2021. I set out in paragraphs 25 and 26 the timescales the Council is required to follow when carrying out reviews of EHCPs. It is clear the Council failed to meet the timescales in the code of practice given it did not issue a final EHCP until May 2023. That is a significant delay and is fault.
69. I appreciate the Council says it was trying to work with Ms B to ensure all parties were happy with the finalised EHCP. While that is to be commended, I would not expect that to be at the expense of failing to adhere to the statutory timescales. It is also clear in this case it means the current EHCP is significantly out of date because it is based on information from October 2021. It also means a further review in October 2022 was missed. That is important because Ms B’s son is due to start his GCSEs. Failure to comply with the statutory timescales is fault. I do not consider it likely Ms B’s son missed out on any special educational needs provision as a result given he has not yet been able to start at school A. In those circumstances I recommended the Council apologise to Ms B and remind officers dealing with reviews of EHCPs of the need to comply with the statutory timescales. The Council has agreed to my recommendations.

Back to top

Agreed action

70. Within one month of my decision the Council should:
• apologise to Ms B;
• pay Ms B £500 to reflect her distress;
• pay Ms B an amount to reflect the costs she has incurred providing education to her son between January and June 2023; and
• send a reminder to officers dealing with EHCP’s about the need to ensure the timescales set out in the code of practice are adhered to following reviews.

Back to top

Final decision

71. I have completed my investigation and uphold the complaint.

Back to top

Investigator's decision on behalf of the Ombudsman