Summary: Miss C complained about the Council’s handling of her request for her daughter (X) not to attend school due to her risk of becoming seriously ill from COVID-19. We found no fault in how the Council considered and responded to her request. It was at fault for causing delays in finalising X’s final amended Education, Health, and Care Plan, but this did not cause Miss C or X an injustice. The Council should issue X’s final Plan and provide Miss C with her appeal rights.

The complaint

1. The complainant, whom I shall refer to as Miss C, complained the Council has failed to properly consider and respond her request for her daughter (X) to be allowed to work from home and not physically attend school due to her increased risk of getting seriously ill from COVID-19. She said it wrongly issued her warnings and threats of legal action for X’s lack of school attendance.
2. Miss C said, as a result, she had experienced 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 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)
4. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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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How I considered this complaint

9. As part of my investigation, I have:
• considered Miss C’s complaint and the Council’s responses;
• discussed the complaint with Miss C and considered the information she provided;
• considered the information the Council provided in response to our enquiries; and
• had regard to the relevant law and guidance to the complaint.
10. Miss C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Relevant law and guidance

Education, Health, and Care Plans

12. A child or young person with special educational needs may have an Education, Health, and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
13. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
14. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
15. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. The amended EHC Plan should be finalised within eight weeks of sharing the draft Plan.

Home education for children with EHC Plans

16. Parents may choose to educate their child at home, including where the child has special educational needs. (Education Act 1996, section 7). In choosing to educate a child at home, the parents take on financial responsibility for any costs involved. This is known as ‘Elective Home Education’.
17. The position regarding responsibility for arranging and funding special educational provision at home is set out in section 61 of the Children and Family Act 2014, the SEN Code of Practice, and statutory guidance ‘Elective Home Education’.
• Where councils and parents agree home education is the right provision for the child, rather than a school placement, the EHC Plan will make this clear. It will include ‘Education Otherwise than at School’ (EOTAS) in section F. In these cases the council has a duty to arrange and fund the special educational provision set out in the Plan. Parents have a right of appeal against a decision not to include EOTAS in the special educational needs provision.
• This is not the same as parents deciding to educate the child at home. Where the council considers an education placement is suitable and the EHC Plan gives the name of a school or type of school, but the parents decide to educate at home, the council is not under a duty to arrange the special educational provision set out in the Plan. This applies as long as the council is satisfied the arrangements the parents have made to educate the child are suitable.
• In these cases the EHC Plan should set out the type of special educational provision that the council thinks the child needs but say the parents have made their own arrangements under section 7 of the Education Act 1996
• A council may help parents who choose to educate their child at home with the costs of special educational needs support, even though it has no duty to do so. It must “give reasonable consideration to any request for assistance - including considering whether it has any legal power to comply with the request and whether in the circumstances it ought to do so”. (Department for Education guidance ‘Elective Home Education’)
• The SEN Code of Practice says councils should fund the special educational needs of home-educated children where it is appropriate to do so.

School attendance and COVID-19

18. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence, they can receive a fine or imprisonment of up to three months.
19. Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare Officer (EWO) will become involved after a referral from the school. EWOs have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.
20. This complaint includes events following the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published ‘Good Administrative Practice during the response to Covid-19’.
21. In January 2021, the government announced schools would close again and reintroduced shielding. While it reopened schools in March, it advised that children who were extremely vulnerable to COVID-19 should not attend.
22. Shielding ended in April 2021. Updated guidance said clinically extremely vulnerable children “should attend school unless they were one of the very small number of pupils under paediatric or other specialist care and have been advised by their GP or clinician not to attend.” Schools had to provide remote education for pupils who could not attend school because they were complying with government guidance. This guidance remained in place for the rest of the school year and into the next.
23. The Government withdrew its ‘Schools COVID-19 Operational Guidance’ in February 2022. This set out measures school were expected to have in place as a result of the pandemic.

Equality Act 2010

24. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
25. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
26. The ‘protected characteristics’ referred to in the Act are:
• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex; and
• sexual orientation.
27. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
28. Organisations will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.

What happened

29. Miss C has a daughter (X) who has health conditions and special educational needs. These are set out in her EHC plan.
30. X has not attended her allocated school since the start of the COVID-19 pandemic in 2020. Miss C says this is because X has health conditions which puts her a high risk of becoming seriously ill from COVID-19. She also provided a GP letter in Spring 2021 which confirmed X was at high risk.
31. Miss C provided X with an education at home with some support from the school. She updated the school with X’s progress through reports.
32. By 2022 the Government had withdrawn all COVID-19 guidance for schools and expected all children and young people to attend school.
33. In May 2022 the Council issued a final amended EHC Plan for X, which listed her school in section I.
34. Miss C provided the school and the Council with a letter from X’s paediatrician. This confirmed X had not been in school, but the Government’s guidance on shielding had been withdrawn. It said school attendance for X would be valuable specifically as she had been vaccinated for COVID-19 and home education would be a parental choice which needs to be supported if parents chose this option.
35. An annual review of X’s EHC Plan was held in June 2022. The Council decided in July 2022 to amend her plan. This shows X was on roll with her school but continued to be educated at home with Miss C’s support.
36. The school visited X in her home in Summer 2022. Miss C was informed by the school and the Council X was expected to attend school. Miss C disagreed and shared the 2021 GP letter and the paediatrician letter. She also shared the NHS’s guidance for people who are at higher risk if contracting COVID-19. This led to several meetings and discussions about X attending school.
37. By February 2023 the Council had considered Miss C’s view and information, it and the School told Miss C X’s absence at school would no longer be authorised. The Council also informed Miss C she could request for X to receive EOTAS or decide to home educate her daughter.
38. Miss C told the Council she did not want X to receive EOTAS and she was not electively home educating her. She also said:
• she wanted it to consider reasonable adjustments under the Equality Act 2010 for X to ‘work from home/ be educated at home’;
• X could not attend her school as there were no longer any specific COVID-19 guidance in place such as regular testing. She explained X could not keep herself safe though social distancing or wearing a mask as set out in the NHS guidance; and
• she therefore believed her absence from school should be authorised.
39. In the following months, the Council and the school called Miss C, offered face to face and online meetings and provided some responses by email. It also suggested a phased return for X to attend school. However, Miss C did not wish to meet or discuss the education provision or attendance with the Council or the school, as she wanted a response to her February 2023 request. She also asked for the upcoming annual review to be delayed.
40. In Summer 2023 the Council sent Miss C a warning letter regarding X’s attendance at school. It explained unless X attended school it may issue fines or start legal action. Miss C again requested a response to her February 2023 request. The Council also shared draft versions of X’s amended EHC Plan with Miss C, who made some comments. This did not result in a final EHCP plan being issued, and Miss C told the Council she did not want a final Plan issued until it had considered her reasonable adjustment request.
41. Miss C asked the Ombudsman to consider her concerns in August 2023. However, as her complaint had not been through the Council’s complaints process, we asked the Council to provide its response.
42. The Council again told Miss C it expected X to attend school and any absence would be treated as unauthorised unless it received medical reasons from a health professional. This was because the COVID-19 guidance and exceptions were no longer in place.
43. In September 2023 the Council told Miss C it would respond to her complaint within 15 working days. It provided its response in October 2023, which did not uphold her concerns. It explained:
• her medical evidence did not say X should continue to shield. It therefore expected her to return to school;
• the school had been correct in not authorising X’s absence and to request for the Council to intervene and work with Miss C to get X to attend school; and
• it continued to be willing to meet with her to discuss Elective Home Education or EOTAS.
44. Miss C was not satisfied with the Council’s response, as she felt it had still not responded to her February 2023 requests. She wanted the Council to respond in writing.
45. In its final response, the Council did not change its view. It said X should attend her allocated school listed in her EHC plan. It explained the school had very detailed health protection arrangement in place during COVID-19 and continues to follow national guidance. It suggested Miss C worked with the school to find a solution for X to access her education at school and remain safe.
46. Miss C remains dissatisfied with the Council’s response and feels it has still not responded to her February 2023 request. She asked the Ombudsman to consider her complaint.
47. Following my enquiries to the Council, I understand:
• the last formal annual review for X took place in Summer 2022 and draft EHC plans were issued in Summer 2023. However, no final EHC Plan has been issued. It explained this was because it had continued to work with Miss C, and she had also said she did not want the EHC Plan finalised; and
• while letters of unauthorised absence have been issued to Miss C, no fines or prosecution has taken place as yet.

Analysis and findings

48. Miss C’s complaint relates to matters which has occurred since X stopped attending school in 2020 during the COVID-19 pandemic. Parts of her complaint are therefore late. This is because the events referred to occurred more than 12 months before she brought them to our attention.
49. I have considered whether it is appropriate to exercise my discretion to consider Miss C’s complaint. I found it appropriate to consider her complaint from Autumn 2022 which is 12 months before her initial complaint to the Council.

X’s education and school attendance

50. X has not attended her allocated school for several years. This was initially due to the COVID-19 pandemic and the Government guidance in place for schools at the time. Miss C provided X with an education at home.
51. I acknowledge Miss C disagrees with the Council’s view X should attend school from September 2022, as she believes she remained at high risk of becoming seriously ill as a result.
52. However, I have found no fault in how the Council reached its view X should attend her allocated school as set out in her May 2022 EHC Plan. This is because:
• the Government withdrew all the remaining guidance in place for COVID-19 in early 2022 and set out the clear expectation all children and young people should attend school;
• the Council had considered Miss C’s views and the information she had provided from X's GP and a paediatrician, neither of whom confirmed X should continue to shield against COVID-19 in 2022;
• the Council was satisfied X’s school had appropriate support and practices in place to limit the risk of infection; and
• if Miss C disagreed with the school placement set out in the EHC Plan, she had rights to appeal the Plan to the SEND Tribunal.
53. As X was not attending her allocated school as set out in her EHC Plan, the Council was required to consider whether it should take action against Miss C for failing to ensure X attended.
54. The evidence shows the Council had discussions and meetings with Miss C and it considered the limited medical support letters she provided, before it issued its warnings and threats of legal action to her. I found this was not fault, as it reached views it was entitled to make. I am also conscious it continued its attempts to work with Miss C to get X to attend her school placement.

Miss C’s February 2023 requests

55. Miss C says the Council failed to respond to her February 2023 reasonable adjustment request under the Equality Act 2010 for X to ‘work from home’ or be educated from home. She explained this was because X was a high risk of becoming seriously ill from COVID-19 due to her rare conditions.
56. I acknowledge Miss C does not feel the Council properly responded to her request and she had concerns for X’s wellbeing. However, I have not found the Council at fault for failing to consider and respond to her request. This is because:
• the evidence shows the Council did consider Miss C’s request. It offered to meet with her or arrange a call or virtual meeting to discuss her request. It also informed Miss C she could request EOTAS or to electively home educate X;
• the Council told Miss C on a number of occasions, based on the medical information she had provided and the withdrawal of the Government COVID-19 guidance, X would be expected to attend her allocated school; and
• the NHS’s guidance Miss C referred to was no longer in place and did not relate to school attendance.
57. Also, the Equality Act 2010 aims to protect people from discrimination and sets out the protected characteristics the Council should have regard to, which includes disability. The evidence shows the Council had regard to X’s medical circumstances as part of the EHC plan process and in its communication with Miss C. If Miss C believes its decision amounts to a breach of the Equality Act 2010, she has the right to bring a claim to court for its determination, or she could have appealed its decision to list the school placement to the SEND Tribunal.

EHC Plan process

58. The Council issued X’s last EHC Plan in May 2022. An annual review should therefore have taken place within 12 months.
59. The evidence shows an annual review took place in Summer 2022 and the Council told Miss C it would amend X’s EHC Plan, but its view remained the placement was suitable for her. Although, a draft plan was issued, the Council is yet to finalise X’s final amended EHC Plan.
60. I acknowledge Miss C did not want the Council to finalise X’s EHC Plan as she disagreed with its views and felt it had not responded to her reasonable adjustment request. I am also conscious the Council decided to try and work with her to get X to attend school.
61. However, I found the Council’s failure to finalise X’s amended final EHC Plan to be fault. This is because it should have finalised the EHC Plan within the statutory timescales, which would then have given Miss C appeal rights to the SEND Tribunal regarding any disagreements about the school placement or the special educational needs provision set out in the Plan.
62. I have considered whether this caused Miss C or X an injustice. However, in this case, I am not satisfied she experienced an injustice as a result. This is because she:
• did not complain about the delay and she did want the Council to issue the final amended EHC Plan;
• did not request EOTAS or a personal budget for X, as she wanted to school placement to continue but without X having to attend her school; and
• was aware of the Council’s view on X’s school placement and need to attend school throughout.

Complaints handling

63. We asked the Council to respond to Miss C’s complaint in August 2023. This was when she felt she had not received a suitable response to her February 2023 request from Council.
64. The Council said it would respond to the complaint within 15 working days, but it did not provide its complaint response until two months later. I therefore found the Council at fault for causing a delay in its complaints handling. However, I am not satisfied this caused Miss C a significant injustice as the Council remained in communication with her and considered the information she provided in September 2023.
65. I understand Miss C did not initially receive the Council’s complaint response. However, the Council has shared evidence this was sent to her by email. I cannot say why she did not receive it until two weeks later. I found no fault in the Council’s stage two complaint response as this was in line with its policy.

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Agreed action

66. The Council should within one month of my final decision:
• issue X’s final amended Education, Health, and Care Plan and inform Miss C about her rights to appeal the provision and school placement to the SEND Tribunal.
67. Within three months of the final decision the Council should also:
• remind its Special Educational Needs and Disability staff of the Council’s duty to complete the Education, Health, and Care plan process within the statutory timescales and inform parents of their appeal rights to the SEND Tribunal. This is regardless of whether a parent disagrees with the provision and school placement set out in the Plan and its ongoing efforts to find agreement with the parent.
68. The Council should provide us with evidence it has complied with the above actions.

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Final decision

69. I have completed my investigation with a finding of no fault in the process the Council followed to reach its views X should attend school and to issue its warnings to Miss C. It was at fault for causing delays in finalising X’s final amended EHC Plan, but this did not cause an injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman