Summary: Ms M complains the Council failed to arrange education for her son, B, for almost a year when he stopped attending school in May 2023. After mistakenly believing Ms M had chosen elective home education, the Council suggested a referral for outreach tuition. Ms M declined as it was almost the end of the year and she hoped B could start at a new school in September. The Council did not agree to Ms M’s preferred school and B remained out of education. We cannot consider Ms M’s complaint once the Council issued a new education, health and care (EHC) Plan in August 2023 because Ms M appealed to the SEND Tribunal.

The complaint

1. Ms M complains the Council failed to arrange education for her son, B, for almost a year when he stopped attending school in May 2023.

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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. 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)
3. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.

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How I considered this complaint

5. I have considered information provided by Ms M and the Council. I invited Ms M and the Council to comment on my draft decision.

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What I found

6. Ms M’s son, B, has an Education, Health and Care (EHC) Plan maintained by the Council. He was a pupil at a mainstream primary school.
7. B stopped attending the school in May 2023. My investigation concerns what happened next.

What happened

8. Ms M emailed B’s school on 21 May 2023 in response to a letter from the headteacher about B’s attendance.
9. She said:
• B’s last day at school had been 11 May 2023;
• she had been teaching B at home throughout his time at the school and would continue to do so;
• this was a temporary arrangement and she hoped B would eventually return to a school that could meet his needs.
10. The school emailed the Council to ask for advice.
11. The Council advised the school to complete the off-roll notification form.
12. The school submitted the off-roll notification form.
13. On 25 May 2023, the Council’s elective home education team contacted Ms M.
14. Elective home education is the term used when a parent chooses to home educate their child.
15. Ms M replied later the same day.
16. She said:
• she was not home educating B. She was waiting for an appropriate school place and teaching him at home in the meantime;
• she was waiting for a draft amended EHC Plan and hoped to find a school very soon; and
• the school should not have taken B off the roll.
17. At the same time, Ms M was also in contact with the special educational needs team in connection with a review of B’s EHC Plan. She had secured an offer of a place at an independent special school for B to start in September and wanted the Council to name the school in his Plan.
18. In an email dated 14 June 2023, the Council agreed to delay the review to await a report from an Educational Psychologist. However, the Council was keen to begin consultations as the end of term was approaching. The Council asked Ms M whether she wanted a “a request to Panel for [B] to be home educated” or a “referral for outreach tuition”.
19. Ms M replied on 16 June. She asked for information about outreach tuition.
20. Ms M replied on 21 June 2023 to say that, “Home education or tuition is not going to benefit [B] if he’s not in a good place mentally.” She said that as it was almost the end of the school year and B had an offer of a school place for September, she thought it was best to focus on this.
21. However, Ms M now complains the Council did not give her enough information to make an informed decision about outreach provision. Ms M says the Council did not tell her B would be allowed to take as many breaks as he needed, or that he would be allocated a mentor, which she says would have benefited him.
22. The Council issued an amended EHC Plan in August 2023. The Plan said B would attend a mainstream school. Ms M was unhappy with the Plan and appealed to the SEND Tribunal. She wanted B to attend an independent special school.

Consideration

23. The Council advised B’s school to remove him from the roll because Ms M had given a clear statement to the school that she did not intend to send him back and intended to arrange tuition herself. Ms M’s email to the school left little room for doubt. Although I have not repeated them here, she set out her plans for B’s education in detail.
24. However, with the benefit of hindsight, it might have been better if the Council had discussed the matter with Ms M first.
25. The Council’s special educational needs team was part-way through a review of B’s EHC Plan. Ms M was unhappy with B’s school and had asked the Council to name an independent special school in his Plan. It appears Ms M’s decision to withdraw B from school was motivated by her dissatisfaction with the school, not a desire for elective home education.
26. If the Council had discussed the matter with Ms M, it is likely this would have been clear and possible the Council would have made different decisions.
27. The Council is not automatically obliged to arrange alternative provision when a parent withdraws a child from school. It could decide the child should return to the school. The Council should consider the reasons the child stopped attending school.
28. The Council may have a duty to arrange alternative provision if it decides it would not be reasonable to expect the child to attend. The Council must consider the child’s individual circumstances and be able to demonstrate how it made its decision.
29. Having advised the school to remove B from the roll, the Council had potentially limited its options.
30. Nevertheless, the email from the Council on 14 June which offered to make a referral for outreach tuition appears to recognise the Council’s duty to consider B’s needs.
31. This was just less than three weeks after the school notified the Council B had stopped attending and removed him from the school roll.
32. Government guidance recognises that time is of the essence when children are missing from education, and three weeks to make a referral is a significant gap in a child’s education. If the Council had spoken to Ms M before advising the school to remove B from the roll, it may have been possible to make a referral sooner.
33. However, a week later, Ms M declined the offer of a referral for outreach provision. She said B was “not in a good place mentally” and proposed waiting until September when she hoped he would start at a new school.
34. In the circumstances, Ms M’s decision is logical based on her hopes at the time.
35. The Council issued an amended EHC Plan in August. The Council did not name Ms M’s preferred school, however, and Ms M has appealed to the SEND Tribunal.
36. B remained out of education for a considerable time. Ms M now says that if she had known more about the outreach provision, she would have taken up the Council’s offer. While I understand Ms M’s point, I cannot investigate B’s education once Ms M appealed to the Tribunal.

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Final decision

37. I have completed my investigation. Although the Council was mistaken in its belief Ms M had chosen elective home education, it suggested a referral for outreach tuition. Ms M declined as it was almost the end of the year and she hoped B could start at a new school in September. The Council did not agree to name Ms M’s preferred school in B’s EHC Plan and he remained out of education. We cannot consider Ms M’s complaint once the Council issued a new EHC Plan in August 2023 because Ms M appealed to the SEND Tribunal.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman