Summary: There was fault the Council delayed issuing a final Education, Health, and Care Plan for Miss X’s daughter in 2022 and 2023. This fault caused Miss X an injustice because of avoidable uncertainty and a delayed right to appeal the Council’s final decision. There was also fault in how the Council evidenced its consideration of Miss X’s request for Elective Home Education and then a request for support while home schooling. The Council have agreed to remedy Miss X’s injustice in line with my recommendations.

The complaint

1. Miss X said the Council never finalised an Education, Health, and Care (EHC) plan for her daughter (Y) after it held an annual review in 2022. She also said it delayed finalising Y’s plan after another annual review in May 2023.
2. Furthermore, Miss X said she did not realise she would not get support from the Council when she chose to home educate Y, and never had a response from the Council when she later asked it to consider an Education Otherwise than at School package (EOTAS).
3. Miss X said because of these failings and poor communication generally, Y has missed out on suitable education over this period, and it has also impacted on her own mental wellbeing.

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The Ombudsman’s role and powers

4. 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)
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 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)
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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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How I considered this complaint

8. I spoke to Miss X and considered the information she provided.
9. I considered the Council’s comments and the documents it provided.
10. I considered the special educational needs and disability (SEND) code of practice and the elective home education statutory guidance, both which councils should follow.
11. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What should have happened

EHC Plan 

12. A child or young person with special educational needs (SEN) 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. 

Reviewing EHC Plans

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. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.
16. 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.
17. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.

Elective home education

18. 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 (EHE) 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.
19. Councils do not regulate home education. However, the law requires councils to enquire about what education is being provided when a child is not attending school full-time.
20. The 2019 elective home education statutory guidance (the guidance) says the primary responsibility remains with the parent, but councils have a social and moral duty to ensure that a child is safe and being suitably educated. Where there is clear evidence the child is receiving suitable education, the need for contact should be minimal.

Special education needs and elective home education

21. The guidance sets out specific responsibilities in respect of children with SEN, including where there is an EHC Plan in place. It says the Council only has a duty to provide the special education provision as outlined in the plan, where it believes the home education being provided by a parent is not suitable. It says therefore where it believes the home education is not suitable, then it should provide the SEP.
22. The guidance also says even where a parent is making suitable arrangements at home, it should still carry out an annual review of the EHC Plan.
23. Councils have a power, but not a duty, to provide support, for example funding or therapy at home for children with SEN who are EHE. The SEND Code of Practice states that councils should fund the SEN needs of home-educated children where it is appropriate to do so.
24. The guidance makes it clear that where a council has a general policy not to provide support it must give reasonable consideration to a request for assistance, including whether in the circumstances it ought to do so.

The Council’s policy

25. The policy says where a parent has asked for EHE, an education advisor will make contact to check how the child’s education will be delivered and ask for examples of work undertaken. It also says it will make an offer of a visit within 10 weeks, after an initial meeting with the EHE officer.
26. In relation to children with an EHC Plan, it says the Council will:
1. Send the parent a letter of acknowledgement and explain next steps;
2. carry out a visit to ensure the parent is aware of their responsibilities, and;
3. organise an interim multi-agency review meeting.
27. The policy also says the Council will issue an amended EHC Plan, outlining the wording in section F and highlighting the type of placement that would have been suitable, but that parents have made their own arrangements.

What happened

28. In June 2021, the Council issued a final EHC Plan for Y. The plan said that Y’s school would support her learning by using a series of education strategies including one to one support from a teaching assistant.

EHC review (2022)

29. In early June 2022, the Council reviewed Y’s EHC Plan because their school, a mainstream school, said they could no longer support their needs. The review notes show Y needed a more specialist placement and recommended amending Y’s EHC Plan.
30. In late June, the Council told Miss X it intended to amend Y’s EHC Plan to ensure Y’s placement and provision where appropriate to her needs. The Council said in mid-September, a complex needs team monitored Y while she was in school.
31. The Council did not issue a draft amended EHC Plan after this review.
32. In October, the Council agreed to consult with schools in its area and during October and November, numerous schools told the Council they could not accommodate Y’s needs.
33. The Council never issued a final EHC Plan after this review.

Elective Home Education

34. In late October, Miss X wrote to the Council and told it she was removing Y from her school and that she would now be ‘home schooling’ her. She said she had taken advice from a local information and advisory support service (IASS). Miss X said she had taken this decision, because Y’s current school had said it could not meet her needs and she was waiting for a placement at a specialist school to become available.
35. During November and December, in a series of internal emails, the Council discussed Miss X’s request. The evidence shows it was aware that Y had an EHC Plan and Miss X was home educating because the school could not meet Y’s needs.
36. In mid-December, a Council officer who was part of the education welfare service (EWS) spoke to Y’s SEN caseworker about the EHC Plan. The SEN caseworker said they were looking for a specialist placement for Y but said it may take time to find one.
37. The EWS caseworker also spoke to Miss X, who had asked how she could access the funding for Y’s EHC Plan, while she was home schooling. In response an EHE caseworker, said they would contact Miss X to ensure she was aware that she was now responsible for financing Y’s education.
38. The Council accepted it did not fully consider its initial duties here in line with its policy as highlighted at paragraphs 25-27.
39. In early March 2023, Miss X contacted the Council asking it to help provide tuition for Y, and for a further review of their EHC Plan. A senior EHCP coordinator agreed to organise a meeting with Miss X and others. The coordinator sent Miss X an email which signposted her to further information and guidance while Y was being home educated.
40. The Council did not fully consider this request in line with guidance as highlighted at paragraph 24.

EHC review May 2023

41. The Council’s case notes show it held another EHC review with Miss X in May 2023. An EHE caseworker went to this meeting and gave Miss X information about the extra support available to her while she was home educating, which included how to access a household support fund and grocery vouchers.
42. Miss X subsequently said in her complaint, that she asked the Council in this review meeting to consider an EOTAS package for Y’s EHCP. I have not seen any evidence of this request. The Council accepted in its response to my enquiries, it could not locate the notes from the May 2023 review meeting.

Miss X’s complaint to the Council

43. In August 2023, Miss X complained the Council had still not found a school placement for Y. She also said she was unaware that Y would not be provided with support while Miss X was home schooling.
44. Following Miss X’s complaint, in September, the Council held another review of Y’s EHC Plan. During this review, the Council apologised for poor communication when it had handled Y’s case. It said Miss X’s previous caseworker had moved to another team. In late October, the Council agreed to provide 25 hours of tuition per week.

EHC review Sept 2023

45. During this review, Miss X told the Council she had asked for an EOTAS package at the May 2023 review meeting. One of the actions the Council recorded was for Miss X to complete an EOTAS proposal and submit it to the Council.
46. In December the Council sent Miss X an amended EHC Plan and has yet to finalise the EHC Plan after it was reviewed in September 2023.

My findings

EHC review

47. We expect councils to follow the statutory timescales set out in the law and the SEND Code of practice. We measure a council’s performance against the Code, and we are likely to find fault where there are significant breaches of timescales.

EHC review 2022

48. For the Council to have complied with legislation, it should have issued a final EHC Plan for Y by late August 2022. The Council did not finalise this EHC Plan and that is fault.
49. This fault caused Miss X an injustice because it caused her distress through avoidable uncertainty about what steps the Council were taking to find a suitable school for Y. It also meant Miss X did not get a right to appeal the Council’s decision about either the type of school it named or the placement, in the event it named a placement.
50. The Council consulted with maintained schools in October and November 2022. However, it did not carry out any further consultations after this point until November 2023 and that too is fault. The evidence shows it knew in December 2022, this was an outstanding consideration in finalising Y’s EHC Plan and impacted on Miss X’s decision to use EHE until a place became available. This fault will have caused an injustice to Miss X because she now has uncertainty about whether a suitable place for Y may have been available if but for this fault.

Elective Home Education

51. Miss X told the Council she had decided to remove Y from her school because it could not meet her needs. Miss X was waiting for a suitable placement to become available.
52. The Council have some initial responsibilities at that point, as outlined in paragraphs 25 and 26, where it should check the suitability of the education and organise a visit with the parent.
53. Additionally, in the case of children with an EHC Plan, it should organise an interim multi-agency review and issue an amended EHC Plan, with amendments at sections F and I, inviting comment from parents.
54. The Council accepted it did not fully comply with its policy when Miss X initially asked for EHE and that is fault. However, I do not find this fault caused Miss X an injustice here, because on balance of the evidence, she had advice from an independent support service when she made this application, and the evidence shows the Council had not managed to secure a school place for Y at that point.
55. In March 2023, when Miss X then asked the Council for tuition support, the guidance says the Council must reasonably consider a request for assistance including whether in the circumstances it ought to do so (paragraph 24). The Council did not properly consider this request and that is fault.
56. However, I cannot say on balance what the Council’s decision would have been and whether it would have agreed to any funding, or instead asked Y to attend a mainstream setting with additional support. Nor can I say on balance what Miss X’s decision would have been after the Council’s decision in any case.
57. Because the Council did not fully record how it acted in line with its policy, it was not able to defend its decision making after Miss X complained. Consequently, I made a service improvement recommendation to the Council about this (paragraph 62.d).
58. In May, the Council then carried out another review of Y’s EHC Plan. Miss X said at that point she asked for an EOTAS package. Neither Miss X or the Council gave me evidence about this specific request, and I cannot therefore make a finding on this. However, the Council accepted it does not have a record of the meeting and that is fault in record keeping. I have made a service improvement recommendation to the Council about this (paragraph 62.d).

EHC review May 2023

59. Given this was a new annual review of Y’s EHC Plan, at Miss X’s request, the Council should have finalised Y’s 2023 EHC Plan by late July. However, the Council did not properly consider this as a review, and that too is fault. I note the Council later apologised for its handling of her case and explained that a caseworker had moved.
60. After Miss X made a complaint, the Council considered her request for tuition support and put this in place, to start in the second part of the Autumn term.
61. I find on balance, that if the Council had properly completed Y’s May 2023 review process in time, this support, which it later put in place, would have been available to start at the beginning of the autumn term. It is therefore an injustice to Miss X of missed education provision for Y of half a school term. The delay in finalising this review caused Miss X a further injustice because it delayed her right to appeal the Council’s final EHC Plan.

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Agreed action

62. Within four weeks of the date of my decision, the Council have agreed they will:
1. Pay Miss X £500 as a symbolic remedy to recognise the missed education provision of around half an academic term.
2. Pay Miss X £500 to remedy the avoidable distress and uncertainty the Council’s actions caused her.
3. Finalise Y’s EHC Plan and give Miss X an appeal right.
4. Ensure all staff involved in making decisions relating to requests for EHE’s, including at annual EHC reviews have had sight of this decision statement.

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Final decision

63. I am completing my investigation with a finding of fault causing Miss X an injustice, for which the Council agreed to remedy in line with my recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman