Summary: Miss X complained the Council failed to provide her child, Y, with appropriate education and provision in line with Y’s Education, Health and Care Plan. The Council was at fault which caused Miss X and Y frustration and distress and meant Y missed out on some education provision. The Council should apologise and make a payment to Miss X.

The complaint

1. Miss X complained the Council failed to provide her child, Y, with appropriate education and provision in line with Y’s Education, Health and Care Plan. She says this impacted Y’s mental health as Y missed out on an education. Miss X says she was forced to give up work to educate Y at home. She wants the Council to compensate her for the distress caused.

Back to top

The Ombudsman’s role and powers

2. 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)
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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

Back to top

What I have and have not investigated

6. I have not investigated events before May 2023. Miss X could have complained to us sooner about the Council’s actions before this date.

Back to top

How I considered this complaint

7. I discussed the complaint with Miss X and considered the information she provided. I also considered information provided by the Council.
8. Miss X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

Education Health and Care (EHC) Plans

9. 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. 
10. 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.
11. 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. The Council must then issue the amended plan within eight weeks. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176).
12. 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.
13. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act).

Elective Home Education

14. 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.
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. Councils have a power, but not a duty, to provide support for children with SEN who are home educated. The SEN Code of Practice states that councils should fund the SEN needs of home-educated children where it is appropriate to do so.

What happened

17. Miss X withdrew her child, Y, from school in 2021 due to high anxiety levels. Miss X decided to educate Y at home. Miss X applied for an EHC needs assessment for Y in 2022. In July 2022 the Council issued a final EHC plan for Y. It said while it believed Y’s needs could be met in a mainstream school, Miss X had decided to electively home educate Y.
18. The Council carried out Y’s annual review on 7 June 2023. It said Y was receiving no education at home and both Miss X and Y wanted Y to return to school. The Council recommended amending Y’s EHC plan to name a placement at one of two potential schools. The Council emailed the review to Miss X and said its next available SEND panel would consider Y’s request for a school place. It told Miss X to let it know if she also wanted the panel to consider a placement of Education Other than at School (EOTAS). Miss X confirmed she would like the panel to consider EOTAS if it did not name one of the two potential schools.
19. The Council emailed Miss X on 13 July with the outcome of its SEND panel. It said the panel did not agree to amend Y’s plan. Y’s plan remained unchanged from the 2022 plan. The Council offered Miss X her right of appeal over its decision not to amend the plan.
20. Miss X tried to contact the Council several times between August and September 2023, with no reply. Miss X complained to the Council in October 2023. She said Y had been out of education for almost four years and the Council had not been in touch for long periods. Miss Y said she was moving areas to be able to access better provision for Y. The Council spoke to Miss X the day after she complained and said it would consult with schools in the area Miss X and Y were moving to.
21. The Council responded to Miss X’s complaint in November 2023. It apologised for its lack of contact and offered to hold an interim review for Y. The Council carried out the interim review and began consulting with potential schools. Unfortunately, none said they were able to meet Y’s needs.
22. In February 2024 the Council’s SEND panel considered a request for alternative education for Y. It noted that Y struggled to attend a mainstream school and had received no formal education at home. At the same time two schools said they could offer Y a place.
23. In April 2024 the Council agreed to commission an alternative education provider but did not progress the provision as it remained confident of Y securing a place at one of the two schools.
24. Miss X visited one of the schools and told the Council she wanted Y to attend the school from September 2024. The Council issued Y’s final EHC plan on 14 May 2024 and named Miss X’s preferred school.

My findings

25. In June 2023 Miss X said she wanted Y to return to school or receive an EOTAS package. It follows that Miss X no longer wished to educate Y herself at home. The Council decided not to amend Y’s EHC Plan following the annual review as neither school it consulted could meet Y’s needs. Y’s EHC Plan from July 2022 therefore remained in place.
26. The 2022 plan stated the Council could meet Y’s needs in a mainstream school, but that Miss X had decided to electively home educate Y. This was no longer the case as Miss X had said she no longer wished to educate Y at home. By failing to amend the plan the Council left Y with an EHC Plan which no longer reflected reality. While Miss X had a right of appeal to the Tribunal over the Council’s decision not to amend, and the final choice of provision, it was unclear who was responsible for providing Y with an education following the review as Miss X had made it clear she no longer wished to educate Y at home and the Council failed to clarify the situation. This is fault and caused Miss X a period of uncertainty and frustration.
27. Following contact from Miss X the Council held a further review in November 2023. At this review it accepted Y’s needs could not be met at a mainstream school and it began consulting with alternative schools. Following its decision to amend Y’s plan in November 2023, the Council should have issued the amended plan by February 2024. The Council failed to identify a suitable school and issue a final EHC plan until May 2024; a delay of three months. This is fault, causing Miss X and Y further uncertainty and frustration and which delayed her right of appeal.
28. The Council had a duty to provide Y with the provision in the amended plan from May 2024, whether at Y’s named placement or elsewhere if the placement was not available. The Council says it considered alternative provision in February 2024 but accepts it failed to put this in place. It says it believed a place would become available at a suitable school. Regardless of its expectations of a school place for Y, the Council was under a duty to provide Y with the provision in the EHC plan. As a result of the delay in issuing Y’s amended EHC plan and the Council’s inaction in securing alterative provision, Y missed out on a term and a half of education.
29. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. In deciding on a figure, we consider factors such as:
• The severity of the child’s SEN as set out in their EHC Plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Lost or delayed right of appeal to tribunal
30. I have taken account of these factors and consider a payment of £1800 would be appropriate.

Back to top

Agreed action

31. Within one month of the final decision the Council had agreed to take the following action:
1. Apologise to Miss X for the frustration and uncertainty caused by the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
2. Pay Miss X £300 to recognise the uncertainty and frustration caused by the three-month delay in issuing Y’s amended plan.
3. Pay Miss X £1800 to recognise the impact of the loss of a term and a half of special educational provision on Y.
32. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

33. I have completed my investigation and found fault by the Council which caused injustice, which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman