Summary: Ms X complained the Council failed to complete her child’s annual review of their Education, Health and Care Plan in the correct timescales. Ms X also complained the Council failed to provide education for her child since September 2021. We found fault with the Council delaying for nearly one year in reviewing Ms X’s child’s Education, Health and Care Plan. We also found fault with the Council failing to consider if Ms X’s child needed support from their Education, Health and Care Plan from 26 November 2021 until 21 April 2023 while electively home educated. We also found fault with the Council failing to provide suitable education for Ms X’s child from 21 April 2023 to 5 February 2024 and failing to provide Speech and Language Therapy from 21 April 2023 to 16 January 2024. The Council agreed to apologise to Ms X, pay her £400 for her distress and frustration and £500 for the lost opportunity and potential harm caused through lack of educational support. The Council also agreed to backdate Ms X’s child’s personal budget from 21 April 2023 to 5 February 2024 and pay Ms X the equivalent of any lost Speech and Language Therapy sessions from 21 April 2023 to 16 January 2024.

The complaint

1. Ms X complained the Council failed to complete her child’s annual review of their Education, Health and Care Plan (EHC Plan) in the correct timescales.
2. Ms X also complained her child has been out of education since September 2021 without any educational provision.

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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 has a right of appeal, reference or review to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused a significant injustice or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 34B, 34C and 34H(3 and 4) as amended)
7. We consider whether there was fault in the way an organisation made its decision. 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)
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)
9. 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 have and have not investigated

10. I have exercised the Ombudsman’s discretion to investigate the issues in Ms X’s complaint since 26 November 2021. This is because this is the date the Council issued an amended final EHC Plan for Ms X’s child.
11. Any issues before 26 November 2021, are over 12 months since Ms X brought her concerns to either the Council or the Ombudsman. This would form the basis of a separate complaint which is no longer within the jurisdiction of the Ombudsman to investigate.

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How I considered this complaint

12. I have considered all the information Ms X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
13. Ms X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Rules and Regulations

EHC Plans

14. 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.
15. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
16. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments, and re-assessments, and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
17. A parent may request a reassessment of a child’s EHC Plan. If the council agrees to an EHC needs reassessment, it has 14 weeks to issue the final EHC Plan from the date it agreed to reassess.
18. 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.
19. 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) 
20. 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.
21. In 2022, the case of R (L, M and P) v Devon County Council said when a local authority proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
22. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.

Elective home education

23. 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.
24. The SEN Code of Practice 2015 outlines that a council should work with a parent to ensure a child’s SEN needs are met when they are being electively home educated. The Code of Practice outlines that the Dedicated School Grant is intended to fund provision for all relevant children in the authority’s area, including home educated children. A council should fund children’s SEN needs where it is appropriate to do so.
25. The Department for Education confirms a local authority has no duty to assist a parent with costs they incur while electively home educating their children. However, a local authority must given “reasonable consideration” to any request for assistance from a parent who is electively home educating their child.
26. A parent can choose to end home education at any time by applying for school places or contacting the Council for support.
27. In circumstances where the child cannot attend school, the council should be offering alternative provision to reduce the likelihood that a child will end up without suitable education.

Alternative provision of education

28. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
29. 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))
30. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
31. 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? published July 2022
32. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that 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;

33. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled
34. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
35. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

36. On 11 February 2020, the Council produced the first EHC Plan for Ms X’s child, who I shall refer to as Y.
37. On 27 July 2020, the Council issued an amended EHC Plan for Y naming a specific school as Y’s school placement in Section I.
38. Y attended pre-school from September 2020 to July 2021.
39. On 21 July 2021, Ms X told Y’s school that Y would not be returning in September 2021 and she had decided to Electively Home Educate Y for the foreseeable future. Ms X did not request the Council to assist with any arrangements for Y’s education.
40. The Council completed an annual review of Y’s EHC Plan in February 2021. On 2 August 2021, the Council issued a notification letter confirming its intention to maintain Y’s EHC Plan.
41. The Council held an annual review for Y’s EHC Plan in October 2021. On 26 November 2021, the Council issued an amended Final EHC Plan for Y. This EHC Plan detailed the Section F provision the Council should provide for Y to support his needs. This included work with a Speech and Language Therapist, support from appropriately trained staff and a curriculum designed to meet Y’s needs among other methods of support. The Council confirmed in this EHC Plan that Y was Electively Home Educated under Section I.
42. On 31 March 2022, Y reached compulsory school age.
43. On 16 August 2022, Ms X made a request for Y to be placed at a particular school from September 2023. Ms X confirmed she was currently Electively Home Educating Y.
44. In September 2022, Ms X requested the Council reviews Y’s EHC Plan. The Council completed an annual review of Y’s EHC Plan on 5 October 2022. The Council decided to amend Y’s EHC Plan.
45. The Council issued draft EHC Plans to Ms X twice in November 2022. Ms X said she wanted the Council to get reports from a Speech and Language Therapist and Educational Psychologist to better inform Y’s EHC Plan. On 20 November 2022, Ms X also asked for a personal budget/direct payments to help cover the costs for Y’s home education.
46. Ms X made a formal complaint to the Council on 2 February 2023. Ms X complained:
• The Council had failed to review Y’s EHC Plan despite her requests to do so since September 2022.
• The Council had failed to consult relevant professionals in reviewing Y’s EHC Plan.
• She had made numerous requests for Y to be placed at a specific school from September 2023 but is not sure if the Council has arranged this.
47. On 23 February 2023, the Council agreed to complete an EHC Needs Plan re-assessment of Y.
48. The Council issued a complaint response to Ms X on 7 March 2023. The Council said:
• It had decided to maintain Y’s EHC Plan in August 2021 following an annual review earlier in the year.
• It failed to complete the EHC Plan review process in the correct timescales by August 2022 and apologised for this.
• It had now agreed to complete an EHC Needs Plan re-assessment on 23 February 2023.
• It had sent a consultation letter to Ms X’s chosen school.
49. On 13 April 2023, the Educational Psychologist, commissioned by the Council for Y’s EHC Plan review, provided their findings to the Council. The Educational Psychologist said Ms X wanted Y to attend an educational setting and it was their view that an appropriate educational setting should be identified for Y. The Educational Psychologist provided comments about what kind of educational setting Y needed. The Educational Psychologist confirmed that Ms X said “they feel that Y needs to now be in school”.
50. On 17 May 2023, the Council issued a draft EHC Plan for Y. Ms X provided comments on the draft decision on 20 June 2023 and requested a school placement for Y at specific named school.
51. On 21 July 2023, Ms X contacted the Council to request an Education Otherwise Than At School (EOTAS) package for Y in place of Elective Home Education.
52. The Council responded to advise that to consider an EOTAS package for Y it needed to be satisfied it would not be appropriate for Y to attend an educational placement.
53. Ms X made a new complaint to the Council on 7 August 2023.
54. On 23 August 2023, the Council issued its Stage 1 complaint response. The Council said:
• It accepted there had been a breakdown in communication about the progressions of Y's EHC Plan reassessment.
• It did not currently have the information available to complete Y’s EHC Plan reassessment or decide if Y could attend an educational placement but was continuing to work on this.
55. On 7 September 2023, the Council confirmed to Ms X it would be arranging for Y “to access an EOTAS package based on the information” Ms X had shared with it.
56. The Council issued a second draft EHC Plan for Y on 27 September 2023.
57. On 27 October 2023, the Council told Ms X since it had no medical evidence that Y could not attend school it would not provide an EOTAS package for Y. The Council said it would look to provide a suitable school placement for Y to start as soon as possible.
58. At the start of November 2023, the Council offered a home tutor for Y as EOTAS. On 8 November 2023, Ms X declined the home tutor because she did not consider this would meet Y’s needs.
59. Ms X sought escalation of her complaint to Stage 2 of the Council’s complaints procedure on 15 November 2023.
60. On 22 December 2023, the Council issued its Stage 2 complaint response. The Council said:
• It accepted it had failed to find a suitable school placement for Y.
• It accepted it had failed to produce Y’s Final EHC Plan within the statutory timescales.
• It would start to provide Speech and Language Therapy sessions for Y in January 2024.
• It had offered to interim arrangements of tuition for Y until it could find a suitable school placement for Y.
61. On 16 January 2024, the Council began to provide Speech and Language Therapy sessions for Y.
62. The Council created a personal budget for Y on 2 February 2024 which included a total one-off payment of £1,377.24 for educational equipment and weekly payments of £48 for swimming and trampoline sessions. The Council created this to provide educational provisional and support until Y started at school in September 2024.
63. On 16 February 2024, the Council authorised the funding for Y’s personal budget from 5 February 2024.
64. On 5 March 2024, the Council paid £2,337.24 for Y’s personal budget on to its payment system. This £2,337.24 was for Y’s one off educational equipment costs and weekly personal budget payments from 5 February 2024 to 19 July 2024.
65. On 14 March 2024, the Council issued a final EHC Plan for Y naming a school in Section I which would start in September 2024.

Analysis

EHC Plan Reviews

66. As explained in paragraphs 10 and 11, I am only investigating matters since 26 November 2021. Matters before this date are out of the Ombudsman’s jurisdiction to investigate.
67. The Council had twelve months to review Y’s EHC Plan from completion of the last annual review. The last annual review was completed when the Council issued the notification to amend letter resulting in the 26 November 2021 final EHC Plan. The Council does not have evidence of the annual review notification letter sent in October 2021. On the balance of probabilities the Council would have issued this letter four week before the final EHC Plan issued on 26 November 2021. As such, the Council had twelve months to complete the next annual review of Y’s EHC Plan, which would be up to 29 October 2022.
68. The Council completed an annual review meeting for Y’s EHC Plan on 5 October 2022 and decided to amend Y’s EHC Plan on 10 October 2022. This satisfied the annual review process for Y’s EHC Plan. The Council completed the annual review process for Y’s EHC Plan within 12 months from the previous annual review. I do not find fault with the Council.
69. While the Council completed the annual review process and notified Ms X of its intention to amend the EHC Plan within the correct timescales, it failed to issue an amended final EHC Plan. The Council had 12 weeks from 5 October 2022 to issue an amended final EHC Plan for Y. This meant the Council had until 28 December 2022 to issue Y’s amended final EHC Plan. The Council did not meet this timescale, this was fault.
70. Following further contact from Ms X, the Council agreed to complete a reassessment of Y’s EHC Plan on 20 February 2023. The Council had 14 weeks to issue an amended Final EHC Plan for Y from this date. This meant the Council had until 29 May 2023 to issue a final amended EHC Plan. The Council did not issue the final amended EHC Plan until 14 March 2024. This was fault.
71. Overall, the Council delayed for 7 weeks and 5 days from 28 December 2022 until 20 February 2023 and for a further 41 weeks and 3 days from 29 May 2023 until 14 March 2024. This meant the Council delayed outside the statutory timescales in reviewing Y’s EHC Plan for just over 49 weeks; this amounts to nearly a full year. This was fault.
72. The Ombudsman’s guidance on remedies says we will normally recommend an award of up to £500 for uncertainty and frustration caused through the Council’s fault. I consider the Council should pay Ms X £400 for the delays caused by its fault. This £400 payment is a symbolic payment to recognise the frustration and uncertainty caused. The Council should also apologise to Ms X.

Y’s Education and EHC Plan provision up to 21 April 2023

73. Ms X decided to Electively Home Education Y in July 2021. Ms X had every right to decide to home educate Y. In choosing to home educate Y, Ms X took on the financial responsibility for any costs involved in educating Y.
74. While Ms X was responsible for providing education for Y through elective home education, the Council still had a general duty to work with Ms X to provide EHC Plan provisions and support. The Council can remove this duty by deciding it has made suitable provision available to a child in a school placement and it is not appropriate to make such provisions for a child at home.
75. The Council decided that Y’s school was a suitable school placement by naming this placement in the July 2020 EHC Plan. Following Ms X advising she would Electively Home Educate Y in July 2021, the Council had a duty to consider whether it was appropriate to continue to fund Y’s EHC Plan provision at home. Or decide that its offer of a school placement meant this support was available should Y need. The Council failed to evidence that it gave any consideration about whether to fund Y’s EHC Plan provision while home educated. This was fault.
76. The final EHC Plan the Council produced in November 2021 provides clarity to the Council’s thinking, despite the lack of formal consideration. The Council has detailed that Y is electively home educated in Section I but also details the support Y needs in Section F. This shows the Council knew Y needed support for their Special Educational Needs despite being electively home educated.
77. While the Council’s failure to consider whether to continue to fund Y’s EHC Plan provision was fault, it is of note that Ms X did not contact the Council to request support until 20 November 2022. Since Ms X did not contact the Council to request support until 20 November 2022, this mitigates the Council’s fault up to this point.
78. The evidence shows the Council knew Y needed support, despite being home educated, but failed to give suitable consideration to whether it should provide this support. However, Ms X chose to home educate Y and did not request any support from the Council for doing so until 20 November 2022. The impact of this is that from 26 November 2021 to 21 April 2023, Y went slightly over four full terms without any EHC Plan support. The fault by the Council caused this injustice to Y, with the fault partially mitigated by Ms X’s failure to request support from the Council until 20 November 2022.
79. As detailed in paragraph 72, the Ombudsman’s guidance on remedies says we will normally recommend an award of up to £500. These awards are also applicable for potential harm. Given Y went without suitable support, this presented potential harm to Y’s education. The Ombudsman can offer awards for more than £500 when there has been a prolonged length of time, such as in this matter. However, as noted above, Ms X did not ask for support from the Council until 20 November 2022. The Council should provide Ms X with a payment of £500 for Y’s lost opportunity and potential harm to their education because of the prolonged period of time without support balanced against inaction from Ms X to ask for support from the Council before 20 November 2022.

Y’s Education and EHC Plan provision from 21 April 2023 to 5 February 2024

80. The first contact from Ms X to request a school placement for Y was in August 2022. While Ms X made this contact in August 2022, she requested a school placement from September 2023. This meant that Y was still electively home educated throughout most of the academic year 2022/2023. I do not find fault with the Council not providing education for Y throughout most of this academic year.
81. This situation changed on 13 April 2023. On this date, the Council’s commissioned Educational Psychologist made it clear to the Council that Ms X wanted a school placement for her child “now”. This was supported by Ms X on 20 June 2023 when she requested a school placement for Y through comments on the EHC Plan. Ms X also requested EOTAS for Y on 21 July 2023. These requests from Ms X told the Council that Ms X no longer wished to home educate Y. Ms X made this request for EOTAS because the Council had not found a suitable school placement for Y for September 2023.
82. The Council must arrange alternative provision of education, in the absence of a suitable school placement, from the sixth day of absence. Given the Educational Psychologist made it clear in their report to the Council that Ms X no longer wished to home educate Y on 13 April 2023, the Council had a responsibility to provide education from this date. Since the Council could not find a suitable school placement for Y it should have considered EOTAS to start from 21 April 2023.
83. The Council failed to offer any education for Y either at school or as alternative provision of education until the start of November 2023. This was fault. This fault caused Y to miss nearly a full term of education without any provision.
84. Ms X declined alternative provision of education from the Council on 8 November 2023 because she did not consider the home tutor was sufficient education for Y’s needs. Ms X was entitled to decline this offer of alternative provision. However, the Council has tried to fulfil its duty to provide education for Y at this time so I would not find fault.
85. Following Ms X declining the home tutor on 8 November 2023, the Council should have looked into what provision it could provide Y. The Council should have done this from the sixth day following 8 November 2023, 16 November 2023. The Council failed to offer or agree to further educational provision for Y until 5 February 2024. This was fault.
86. The Council has also accepted it failed to provide any support from Y’s EHC Plan from 21 April 2023 until 5 February 2024, other than the Speech and Language Therapy Sessions which started in January 2024. This was fault.
87. On 5 February 2024, the Council agreed a personal budget of £48 per week for Y’s educational needs until they started at school in September 2024. The Council should backdate this £48 personal budget to 21 April 2023. This is excluding the period 2 November 2023 to 16 November 2023 in which the Council offered home tutoring and Ms X rejected this.
88. The Council should also provide Ms X with a payment equivalent to any missed Speech and Language Therapy Sessions as detailed in Y’s EHC Plan from 21 April 2023 to 16 January 2024.
89. These payments will reflect Y’s lost education and EHC Plan provision from 21 April 2023 to 5 February 2024.

Y’s Education and EHC Plan provision from 5 February 2024 to end of academic year 2023/2024

90. The Council created a personal budget for Y’s education and EHC Plan provision, alongside access to Speech and Language Therapy sessions, until the end of the academic year 2023/2024. The Council has paid £2,337.24 for the full provision, including all weekly payments to the end of the term and one-off equipment payments, on 5 March 2024.
91. The Council has demonstrated suitable rationale behind this decision and has made suitable educational provision available to Y until they start at their new school in September 2024. I do not find fault with the Council.
92. The Council has made these funds available on its payment systems and should ensure Ms X has access to these funds.

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Agreed action

93. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology to Ms X and pay her £400 for the avoidable distress and inconvenience caused through its 49 weeks of delay outside the statutory timescales in reviewing Y’s EHC Plan.
• Provide a payment to Ms X of £500 for the failure to consider whether to provide Y with the EHC Plan support from 26 November 2021 until 21 April 2023 resulting in lost opportunity and potential harm to Y’s education.
• Backdate Y’s personal budget of £48 per week for the period 21 April 2023 to 5 February 2024, excluding the time period 2 November 2023 to 16 November 2023.
• Provide Ms X with a backdated payment equivalent to Y’s missed Speech and Language Therapy sessions in line with Y’s EHC Plan from 21 April 2023 to 16 January 2024.
• Ensure Ms X has access to the funds for Y’s provision form 5 February 2024 to the end of the academic year 2023/2024, including the one-off payment for equipment and weekly personal budget, from its payment system.
94. The Council should provide us with evidence it has complied with the above actions.

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Final decision

95. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman