Summary: Ms X complains the Council delayed providing education to her child after she could no longer home educate Child Y. This meant Child Y was without suitable education. The Ombudsman finds fault with the Council for delaying providing education, however the Council has already remedied the injustice.

The complaint

1. Ms X complains the Council failed to properly consider her request to educate her daughter when she told it she could no longer provide home education.
2. Ms X says the Council failed to provide suitable education to her child, and as a result, her child was without education for an extended period.

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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. 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)
5. If we are satisfied with a council’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)
6. 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 have and have not investigated

7. Part of Ms X’s complaint are about:

• The decision not to assess or make an Education, Health and Care Plan (EHCP) in 2022,
• the decision to name Elective Home Education in Section I of the EHCP,
• the EHCP decision following mediation,
• staff member conduct during mediation, and
• the Preparing for Adulthood element of the EHCP.

8. I am not considering these parts of the complaint as they are about the content or process of the EHCP, which inform the outcomes in the EHCP. Ms X has the right to appeal the outcomes in the EHCP at tribunal and it would be reasonable for her to use her appeal rights.

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How I considered this complaint

9. I considered Ms X’s complaint and information she provided. I also considered information from the Council.
10. I invited Ms X and the Council to comment on my draft decision and considered any comments received.

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What I found

Legislation and guidance

Special educational needs

11. A child with special educational needs may have an education, health and care (EHC) plan. This sets out how to meet the child’s needs. The plan is set out in sections, including section F: the provision needed by the child.
12. Councils have a duty to make sure children receive the provision set out in section F of their EHC plans. (Children and Families Act 2014, Section 42)
13. The provision should be in place as soon as the final EHC plan is issued. (SEND code of practice)
14. The duty to arrange this provision is non-delegable. This means if a council asks another organisation to deliver the provision and that organisation fails to do so, the council remains liable. (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)

Children out of school

15. 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)
16. So, if the Council has arranged for the provision of education which is suitable for a child and which he/she is reasonably able to attend, a council would not be under a duty to provide alternative suitable education, simply because, for one reason or another, the child is not taking advantage of the existing facility.
17. In R v Croydon Council [2015], the issue was whether a child of compulsory school age could reasonably be expected to attend the school. The Court decided that, where a child or young person had a medical reason or special educational needs, which explained the non-attendance, a council’s duty to arrange alternative education would be triggered, and alternative provision should be made pending finding a suitable school.

What happened

18. Child Y has an Education, Health and Care Plan maintained by the Council. Previously, Child Y was electively home educated by her mother, Ms X.
19. Ms X told the Council in July 2023 that she was no longer home educating Child Y. She asked the Council to consider a personal budget to deliver education to Child Y.
20. The Council told Ms X that to consider a personal budget, it needed to be satisfied there were no suitable schools for Child Y. Therefore, it would consult with local schools to find out whether any could meet Child Y’s needs. It sent out consultations to schools about whether Child Y could attend.
21. In November 2024, the Council confirmed that no schools could meet Child Y’s needs and that it would prepare the case for the Special Educational Needs panel to request a personal budget for Child Y.
22. The panel agreed the personal budget for Child Y in December 2024. The Council paid Ms X the personal budget for the Spring term in January 2024. It also made a payment to Ms X in February 2024, and told her this was a back payment for the Autumn term.
23. Ms X complained to the Council. In her complaint she said the Council had not provided her with an outcome of her request for a personal budget. This process was delayed, and her child was without education in this time as she had told the Council in July 2023 that she had stopped home educating.
24. The Council’s stage one response said that it needed to consult with education providers and then take the case to panel. The Council later said that it had offered some tuition as it recognised it was taking some time for the case to be heard at panel.
25. Ms X remained unhappy and asked the Council to consider her complaint at stage two.
26. The Council’s final complaint response said it had hired a consultant to review the personal budget policy, and that it had no further information to provide.

Analysis

Section 19 duty

27. When Ms X told the Council that she was no longer home educating Child Y, the Council should have considered whether it had a section 19 duty to provide education to Child Y
28. I accept the Council needed to follow the process to find out whether there was an available and accessible school or whether a personal budget could be delivered. However, it should have considered what education Child Y was accessing in the meantime as Ms X had clearly said she was no longer educating Child Y.
29. In response to my enquiries, the Council accepted there was a delay in the decision to give a personal budget. For this reason, it had made a back payment of the personal budget to Ms X for September to December 2023. This is recognition Child Y should have been receiving education during this time.
30. The amount paid to Ms X for the autumn term is in line with the personal budget and is in line with the Ombudsman’s guidance on remedies for missed provision. I am therefore satisfied that while there was fault by the Council, it has remedied the injustice to Ms X and Child Y by making this payment.
31. I considered whether there was further injustice for July and August 2023. However, it is unlikely the Council would have been able to complete the consultation or source education for Child Y during the summer holidays. Therefore, the injustice was from September 2023 when education should have been in place.

Complaint handling

32. The Council’s final complaint response says the personal budget policy is under review and it does not have anything further to say. This does not address the part of the complaint about the delay in agreeing a personal budget and whether the Council should have been providing education to Child Y in the meantime. I accept the Council did briefly discuss tuition and options with Ms X as it recognised the process was taking some time however this did not go ahead.
33. By the time the Council issued its final response, it had granted Child Y a personal budget and made a back payment for the Autumn term. It should therefore have explained to Ms X that it recognised Child Y should have been receiving education, and that it had remedied this by making the back payment for the Autumn term.
34. However, I do not think the Council’s complaint handling has caused Ms X further injustice. The Council had already remedied the lost provision and granted a personal budget. On balance, I am satisfied that Ms X remained unhappy with most of the Council’s actions during the EHCP process and would have complained to the Ombudsman regardless of the outcome.

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Final decision

35. I have completed my investigation. I find fault with the Council for delaying providing alternative provision, however the Council has already remedied the injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman