Summary: Mrs Y complains about the Council’s failure to provide education for her child, D, when they stopped attending school. Mrs Y also complains the Council failed to meet statutory timescales when assessing and issuing D’s Education Health and Care Plan. The Council also failed to respond to Mrs Y’s complaint. In the parts of the complaint within our jurisdiction, we find fault which caused injustice to Mrs Y and D. The Council has agreed to implement the remedial actions listed at the end of this statement.

The complaint

1. Mrs Y complains about the Council’s failures when it assessed and issued an Education Health and Care Plan (EHC Plan) for her child, D.
2. Mrs Y also complains the Council failed to provide a suitable alternative education when D was unable to continue attending school in October 2021.
3. Mrs Y says the Council has failed to act upon the SEND Tribunal order within the five-week timescale and in the meantime, D continues not to receive any education.
4. When Mrs Y complained to the Council, she did not receive a response to corporate complaint.
5. Mrs Y says she has experienced avoidable distress, time, trouble and expense. D has lost over two academic years of education and has become increasingly socially isolated and anxious.

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The Ombudsman’s role and powers

6. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended) 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.
8. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
9. 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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What I have and have not investigated

10. The term jurisdiction refers to our legal powers to investigate a complaint. For the jurisdictional reasons explained in paragraphs 7 and 8, I have only investigated matters from November to July 2022 because this is the period during which the Council should have made provision available for D. There was no right of appeal because D did not have an EHC Plan during this time.
11. I have not investigated Mrs Y’s complaint about the absence of provision between July 2022 and July 2023 because Mrs Y exercised her right of appeal against the contents of the EHC Plan issued in July 2022. During this time D did not receive education, including the provision included in the contested plan. In line with the LGSCO’s approach, if a child is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, the parent’s disagreement about the provision or the educational placement in the EHC Plan, we cannot investigate a lack of provision during that period.
12. I have not investigated Mrs Y’s complaint about the Council’s failure to commission assessments such as social care, Occupational Therapy (OT) and Speech and Language (SaLT). This is because we cannot look at anything which happened before the appeal right started which could be considered by the SEND Tribunal. This includes the assessment process, such as the reports and documents obtained by the Council. This is for two reasons. Firstly, the injustice caused by the absence of any reports is that the EHC Plan did not meet D’s needs which is connected to the appeal. Secondly, because the SEND Tribunal has wide powers to order reports be completed, even if that matter did not form part of the appeal.
13. The Council partially conceded to the appeal and agreed to leave Section I of the EHC Plan blank for EOTAS provision. The SEND Tribunal issued its decision regarding Sections B and F in June 2023. The Council issued the final amended plan on 12 July 2023. I have not considered anything after this date because these are live and ongoing issues. In line with the LGSCO’s Investigation Manual, I have decided this is an appropriate end date because the scope of our investigation should end when the complaint was submitted to us, or earlier. Furthermore, the Council should be given an opportunity to respond to any complaints about recent matters, such as personal budget disputes, before the LGSCO investigates.

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How I considered this complaint

14. During my investigation I considered the information provided by Mrs Y and discussed the complaint with her by telephone. I also considered her response to my draft decision statements.
15. I made enquiries of the Council and considered its response alongside the relevant law and guidance which I have referred to in this statement. I also considered its responses to my draft decision statements.
16. Mrs Y and the Council had an opportunity to comment on my draft decisions. I considered their comments before making this final decision.
17. 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

What should happen

Special Educational Needs

18. Children with special educational needs may have an Education, Health and Care Plan (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.
19. Councils can lawfully issue final EHC Plans with a type of school, or no school named. We have no jurisdiction to investigate the consequences of this if the matter has been appealed to the SEND Tribunal.
20. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

Elective Home Education

21. 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.

Fair Access to education

22. The School Admissions Code (2021) says that councils must have a ‘Fair Access Protocol’ to place vulnerable and ‘hard to place’ children, where they are having difficulty in securing a school place outside of the normal admissions round.
23. For a young person to be considered under the protocol, they will need to fall into one of the categories set out in the council’s own policy. This includes those with special educational needs (but without an EHC Plan), children with challenging behaviour and those out of school for more than four weeks in the event of there being no available place.

Provision of suitable education

24. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
25. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says the duty to provide a suitable education applies, “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”. 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))
26. 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)
27. 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’)
28. 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 mind? How councils can do more to give children out of school a good education, published in 2016). We made recommendations that councils should:
• consider the individual circumstances of each case and be aware that councils 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 in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

What happened

29. D stopped attending primary school in October 2021 during school year six. D left because the school could no longer meet D’s needs, except through online schooling. Mrs Y asked the Council to assess D for an EHC Plan on 8 November. Around this time, the Council received notification that D was not in school but receiving elective home education (EHE).
30. In the meantime, the Council wrote to Mrs Y on 2 December to seek information about D’s home education. Some days later the Council spoke with Mrs Y about D’s provision. She explained it was her intention for D to receive an EHC Plan which included a package of specialist provision. The officer advised Mrs Y that she could continue with EHE or complete an in-year school admissions application for D which would be considered by the Fair Access (FA) team.
31. On 21 December the Council decided to assess D for an EHC Plan. Mrs Y asked the Council to seek advice from Speech and Language Therapy (SaLT) and Occupational Therapy (OT) due to D’s sensory and communication difficulties.
32. On 24 January 2022 Mrs Y emailed the Council to confirm that she has not, and never will, opt to EHE D. Mrs Y also said in her view there is no school available which can meet D’s needs.
33. The Council’s FA team told Mrs Y on 1 February 2022 that it was necessary to make a referral for D to receive medical provision.
34. The statutory deadline to complete D’s EHC needs assessment was 1 February 2022. However, the Council had not yet received all necessary information to finalise the assessment. The next day, D’s caseworker told Mrs Y that SaLT declined to contribute to the assessment as D was not known to their service. Later that month, social care and OT services also confirmed they would not contribute to D’s needs assessment.
35. The Council’s EHE team formally referred D to the FA team on 14 February. Two weeks later the FA team decided that D would benefit from “blended learning provision” to be delivered through home tuition.
36. Dissatisfied with the lack of action, Mrs Y submitted a formal complaint to the Council. In response the Council said its progress with D’s EHC Plan was in line with statutory timescales but explained there had been delays with the EP service due to high volumes of assessments taking place. The Council reminded Mrs Y of her options, including the possibility of seeking an interim school place for D.
37. On 31 March the EP submitted their report. This said D was currently unable to access a typical mainstream environment. The EP said D needed a calm educational environment with quiet, safe spaces and smaller groups of pupils.
38. The Council decided on 5 April to issue a draft EHC Plan for D.
39. Mrs Y received D’s draft EHC Plan on 22 April. Mrs Y submitted her comments in response to the draft. She asked the Council to consider a personal budget (PB) to fund a package of education other than at school (EOTAS). Mrs Y put together a map of proposed provision.
40. On 24 May the Council’s EHE team emailed Mrs Y to say that D will remain registered as EHE until the EHC Plan is finalised. Mrs Y responded to again reiterate that she is not electively home educating D. On the same day, Mrs Y also emailed the Council with a copy of a proposed EOTAS provision map.
41. Mrs Y asked the Council for an update on the FA referral for medical provision. The Council responded on 31 May to explain that it had referred D for a placement at the Council’s AP [Alternative Provision] college for ‘blended learning’. I will refer to this provider as AP1.
42. The Council said Mrs Y initially refused the offer because it was for online lessons only, which she said was unsuitable for D. The Council said the offer remained open should Mrs Y change her mind.
43. Following consideration of Mrs Y’s requested amendments, the Council issued an amended draft EHC Plan on 20 June.
44. The Council agreed to contact AP1 again with a copy of D’s draft EHC Plan. The provider responded to confirm that D could receive three 80-minute sessions at home per week. The sessions started on 6 July. Mrs Y says D received a total of 9 hours and 20 minutes of provision until the sessions ended in mid-July. They did not resume in September.
45. The Council considered Mrs Y’s request for a PB and EOTAS but decided that D’s needs could be met with provision delivered in an education setting. The Council told Mrs Y on 5 July that “… the majority of the provision you have requested is not specified in the EHC Plan as required provision. It has however been agreed to explore a personalised package of provision for [D] to meet the required provision within [D’s] EHC Plan”. The Council consulted with two possible schools.
46. The Council issued D’s final EHC Plan on 7 July, 34 weeks after receiving the request to assess. Section I said D’s provision would be delivered in “a West Sussex maintained setting”.
47. On 25 July Mrs Y received contact from an education coordinator working with another AP. I will refer to this as AP2. A tutor from AP2 met with Mrs Y on 9 August to discuss provision for D. Following this meeting, and with Mrs Y’s agreement, the Council confirmed it would arrange for D to receive a personalised package of provision with AP2 whilst it continued to consult other settings for a permanent placement.
48. On the same day, the Council received an email from AP2 following a conversation a co-ordinator had with Mrs Y. The email said, “Whilst we are confident that our tutor and approach are a very good match for [D’s] needs, we are concerned that Mum does not seem to agree with our approach to tuition which in turn may hinder our ability to deliver the best possible outcomes for [D]. Unfortunately, we do not feel that tuition is likely to be successful in this instance”.
49. Around this time Mrs Y submitted an appeal to the SEND Tribunal.
50. The Council reiterated its view that D’s needs could be made in a setting, rather than through EOTAS. In the meantime, the Council told Mrs Y that D remained registered with AP1 whilst it continued to find an appropriate long-term setting.
51. Mrs Y again asked about AP2. She said it was not fair to suggest she disagreed with its approach; instead, she wanted to vary the proposed provision for D.
52. In response to our enquiries, the Council provided comments from AP1 which confirmed, “When [D] was in Y6, the offer was a five-hour a week provision which then would have moved to a 25-hour FTE offer in September 2022 as he moved into Y7. However, [Mrs Y] refused all [of] our offers of support as she didn't want Blended Learning but an EOTAS package”.
53. Mrs Y says this is incorrect. She said the tutor made her aware from their first meeting that D would not continue to receive provision after the summer break.
54. Mrs Y has provided copies of text messages from the tutor at AP1. These show the tutor queried whether D had access to any tuition from September. Mrs Y replied to say she had not heard anything from the Council since she last spoke with the tutor at AP2. The tutor from AP1 said they could attend once a week for 30 minutes to sit and talk with D. Mrs Y declined because she felt this was not suitable nor in the best interests of D.
55. Mrs Y submitted an additional complaint to the Council in January 2023 about its refusal to provide a personal budget for D. The Council agreed to include the additional point into its ongoing and delayed stage two complaints investigation.
56. On 2 June 2023 the SEND Tribunal made its decision. As a result, D is now entitled to receive a package of EOTAS for 29.5 hours each week. The Council and Mrs Y have met recently to discuss D’s package, some details of which are yet to be confirmed.
57. The Council issued D’s amended final EHC Plan on 12 July 2023.

Was there fault in the Council’s actions causing injustice to Mrs Y and D?

58. We find the Council at fault for the following reasons:
• The Council failed to meet the statutory timescale of 20 weeks when issuing D’s EHC Plan. The Council took 34 weeks to issue the final plan and has pointed to delays in the EP process and difficulties when trying to find suitable provision for D.
• There was unexplainable delay in referring D’s case to the FA team. This did not happen until February 2022, approximately three months after D stopped attending school.
• There is no evidence to show the Council took prompt action as per its Section 19 duties to arrange suitable provision when it became aware of D’s absence. Although the Council asserts that Mrs Y opted to home educate D in late 2021, there is no evidence to support this claim. To the contrary, email exchanges show that Mrs Y clearly told the Council D was not home educated. The Council’s Section 19 duty is therefore applicable from the end of November (after 15 days of known absence) until July 2022 when it issued D’s final Plan.
• When the Council issued D’s final EHC Plan in July 2022, it did not make the specified provision available as per its Section 42 duties. The Council maintains that provision at AP1 was available and accessible for D, however the text messages between Mrs Y and the tutor create doubt about this assertion. The messages show the tutor had no knowledge of any alternative provision or tuition to be made available for D beyond September. However, this matter is closely connected to the matters which were subject to appeal. For the reasons already explained, we have not investigated the complaint about missing provision from July 2022 because the final EHC Plan said D could receive education in a “maintained setting”. Mrs Y had always made clear that D could not attend school and needed a package of EOTAS.
• The Council did not give Mrs Y a right of review when it initially refused to provide a personal budget. This is contrary to Section 7 of the SEN (Personal Budget) Regulations.
• The Council failed to respond to the stage two complaint made by Mrs Y on 19 July 2022. Mrs Y added a further complaint in January 2023 which the Council agreed to investigate. The Council assured the LGSCO during a previous investigation (case 22009199) that it would provide a response by March 2023. When the response did not arrive, Mrs Y had to approach the LGSCO again, which caused her further avoidable time and trouble.

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Agreed action

59. Within four weeks of my final decision, the Council has agreed to:
• Issue separate written apologies to Mrs Y and D for the fault identified in this statement. When doing so, the Council should consider the LGSCO’s guidance on Making an effective apology.
• Pay £1,000 to Mrs Y. This is a symbolic payment in recognition of the significant time, trouble and distress she experienced from the fault.
• Pay £4,000 for D’s educational benefit. This is a symbolic payment in recognition of the two school terms of missed provision between November and July 2022. When deciding on this amount, we considered D’s special educational needs, the missed transition into secondary school and the impact on D who has been isolated and academically disadvantaged. I have considered the part time provision made available in July 2022, amounting to just over nine hours. I have not recommended remedy for missed provision after 7 July 2022 for the reasons explained in paragraph 11. This is in line with our approach as outlined in the LGSCO’s Guidance on Remedies.
• Provide evidence to show it has reviewed the invoices submitted by Mrs Y for the provision she privately funded for D. If the Council decides that it is not obliged to pay the invoices in full, it should clearly set out its reasons in writing.
60. Within eight weeks of my final decision, the Council has agreed to:
• Provide evidence of the staff training sessions and EOTAS process documents made available for officers. As part of ongoing training and development, the Council should remind officers of the requirement to give a right of review against any decisions to refuse a personal budget as per Section 7 of the SEN (Personal Budget) Regulations.
• Improve the way it makes decisions about requests for alternative provision. This could be in the form of staff training or a briefing paper. As part of this, the Council will draw officers’ attention to the Section 19 duties, accompanying statutory guidance and the LGSCO’s focus report ‘Out of School, Out of Sight?’
61. The Council will provide us with evidence it has complied with the above actions.

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Final decision

62. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. In our view, the actions listed above provide an appropriate remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman