Summary: Ms X complained about the way the Council dealt with her request to end her child’s Education, Health and Care Plan and unnecessarily referred her to social services. Ms X said this caused her and her child stress and anxiety. We have not found the Council at fault.

The complaint

1. Ms X complains the Council:
• Insisted she meet with staff from its education team and an educational psychologist after she asked the Council to cease her child’s Education, Health and Care Plan.
• Referred her case to social services after she did not agree to meet with the Council’s education team.
• Contacted her ex-partner as part of the social services referral.
2. Ms X said this caused her and her child stress and anxiety.

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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. 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)
5. 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

6. As part of this investigation I considered the information provided by Ms X and the Council. I discussed the complaint with Ms X over the telephone. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Ms X and the Council for comments.

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What I found

Special educational needs

7. 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. 
8. 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.
9. 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) 
10. 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.

Elective Home Education (EHE)

11. 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.
12. There are no specific legal requirements for the content of home education; it does not need to include particular subjects, follow the National Curriculum or culminate in examinations. It does not need to follow a typical ‘school day’. Councils should not assume an unconventional approach constitutes unsuitable education and approaches should be judged on outcomes.
13. Councils have a duty to make arrangements to enable them to identify children in their area of compulsory school age who are not registered pupils at a school (including academies and free schools) and are not receiving suitable education otherwise (Section 436A, Education Act 1996).
14. The Department for Education (DfE) issued new guidance in April 2019 to reflect the growing concern about children being educated at home who may not be receiving a suitable education or who may be at risk of harm.
15. 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.
16. The 2019 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.
17. The information needed to satisfy the test of whether suitable education is being provided depends on the facts of the case and judgement of the council. But, if a parent refuses to provide a substantive response to a council’s enquiries about the education being provided, that refusal is likely to satisfy the test.

Section 17 duties

18. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
19. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

20. Under the Children Act 1989, councils are required to provide services for children in need for the purposes of safeguarding and promoting their welfare. Where a referral is accepted under section 17 the council should lead a multi-agency assessment and compete it within 45 working days. Where the council’s children’s social care decides to provide services, it should develop a multiagency child in need plan which sets out which organisations and agencies will provide which services to the child and family. The plan must be reviewed within three months of the start of the child in need plan and further reviews should take place at least every six months thereafter. (Working Together to Safeguard Children) 

What happened

21. Ms X’s child, Y, has special educational needs. Since November 2022, the Council agreed that Ms X could electively home educate Y. The Council told Ms X it would still need to carry out annual reviews of Y’s EHC Plan.
22. In late October 2023, Ms X told the Council Y no longer needed an EHC Plan and asked the Council to cease the Plan.
23. Between early November 2023 and late January 2023 the Council tried to meet with Ms X and Y. This was so it could carry out an annual review of Y’s EHC Plan and decide whether it should cease the Plan.
24. In late January 2024, Ms X’s Education, Health and Care Inclusion Officer referred the case to social services. This was because Ms X was homeschooling Y, and the Council had not seen Y since 2021. Also, Ms X was not engaging with services or allowing an educational psychologist to see Y.
25. In late January 2024 the Council looked into the concerns raised in the referral. This included trying an unannounced home visit, contacting the child’s father as he had parental responsibility, contacting the school of Ms X’s other children. The Council decided to process the referral.
26. On 29 January 2024, the Council visited Ms X and Y at home. This visit was to assess the welfare of Ms X’s children. At the visit the Council looked at the home environment and discussed with Ms X what education she was providing. The Council found no concerns with the children or risks in the home.
27. The Council carried out one further home visit in February 2024 and closed the referral in March 2024. This was because Ms X did not consent to further social care involvement and there was no evidence found which suggested the children were suffering significant harm. The Council decided there was no evidence to override Ms X’s wishes to have social care involvement.
28. In February 2024, Ms X complained to the Council that it had not ceased Y’s EHC Plan and was asking to see Y. Ms X said the Council was also asking her and Y to meet with an education psychologist and Y did not want this. Ms X also complained the Council referred her case to social services and she had two unannounced visits.
29. Between February 2024 and April 2024 there was further communication between the Council and Ms X about arranging an annual review for Y’s EHC Plan. Ms X could not agree a suitable time for this to take place with the Council.
30. In April 2024, the Council responded to Ms X’s complaint. The Council said when it agreed Ms X could home educate Y it told her it would need to carry out annual reviews of Y’s EHC Plan and progress. The Council said for it to cease Y’s EHC Plan, it would need to carry out an annual review so it could get advice from professionals around whether Y still needs an EHC Plan.
31. Ms X remained dissatisfied and complained to the Ombudsman. Ms X said the Council’s SEND team referred her to social services unnecessarily and she was bullied by staff to meet with the Council. Ms X also said the Council contacted her ex-partner to get information about her.

Analysis

Ms X’s request to cease Y’s EHC Plan

32. Ms X asked the Council to cease Y’s EHC Plan in October 2023. Following this the Council sought to hold an annual review of the Plan and have Y meet with an educational psychologist. Ms X has not agreed a time for the annual review to take place.
33. I do not consider the Council at fault for trying to arrange an annual review for Y’s EHC Plan. The Council still has to hold an annual review even though Y is home educated. To cease the EHC Plan the Council would need to satisfy itself that Y no longer needs an EHC Plan. It would need to seek the input of professionals involved with Y to properly decide whether Y still needs an EHC Plan.
34. It is right that Y does not have to attend any annual review meeting, given Ms X was educating them at home. However as Ms x is home educating Y, the Council would not be able to rely on reports from a school, headteacher, teacher or other staff to consider the suitability of Y’s education or progress. The Council has to satisfy itself that Y is receiving suitable education at home and that Y does not need an EHC Plan if it were to cease this. I have therefore not found the Council at fault for asking to meet Y in person.

Referral to social services

35. As the Council had not been able to arrange an annual review with Ms Y to assess Y’s progress, it referred the case to it social services team. I have not found the Council at fault for this decision. This is because it tried for several months to arrange an annual review for Y and had not seen Y since 2021. I recognise Ms X disagrees with this course of action and the result of the referral did not raise any concerns about Ms X, but on balance I am satisfied the Council has been able to justify why it made the referral.
36. Ms X was also unhappy that as part of its investigations the Council contacted her ex-partner. I have not found the Council at fault for this decision. Ms X’s ex-partner had parental responsibility so would have been entitled to information about the children.

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Final decision

37. I have completed my investigation and found there was no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman