Summary: Mr X complained about the way the Council dealt with his child Z’s education and special educational needs provision. We have found fault by the Council, causing injustice, in failing to: complete the annual review process within the statutory timescales; provide Z with a suitable education; and with its communication and complaint handling failures. The Council has agreed to remedy this injustice by: apologising; making payments to reflect the distress caused to Mr X and the impact of the missed education on Z; and a service improvement.

The complaint

1. Mr X complains about the way the Council has dealt with his child Z’s education and special educational needs provision. He says the Council failed to:
1. complete the annual review of Z’s Education Health and Care (EHC) plan within the statutory timescales;
2. provide Z with a suitable education from August 2023, when he told it they had decided to withdraw Z from elective home education; and
3. put the agreed package of education otherwise than at school (EOTAS) in place in a timely way.
2. Mr X says, because of the Council’s failures, they had to provide the resources for Z’s education until the EOTAS package was put in place. The failures and delays also caused them immense stress and worry, possibly affecting Mrs X’s health. and impacted their ability to meet the needs of their other child.

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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.
4. 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)
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)
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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How I considered this complaint

7. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
8. Mr X and the Council had the opportunity to comment on my draft decision. I considered their comments before making my final decision.

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What I found

What should have happened

Elective Education (EHE)

9. 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.

EHC Plans 

10. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
11. 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. 

Reviewing EHC Plans

12. 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 annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place.
13. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
14. 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). 
15. Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Alternative education provision

16. 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.
17. This applies to all children of compulsory school age living in the local council area and whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
18. 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)

The Council’s complaints procedure

19. The Council’s published policy says:

• it will normally send its stage 1 response within 10 days of receiving the complaint; and
• if a request for a stage 2 response is made, a senior manager will review the complaint and aim to provide a detailed response within 20 days of the request.

What happened

20. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Background

21. Z has special educational needs. They have had an EHC plan for a number of years.
22. As at February 2023, Z attended the school named as their placement in the EHC plan.
23. Later in that school year, Mr X decided to withdraw Z from school and electively home educate them.

August 2023: Mr X’s decision to stop elective home education

24. On 7 August Mr X told the Council they had decided to end Z’s elective home education. As this was a significant change, he asked it to hold an emergency annual review of Z’s EHC plan.
25. Mr X also told the Council he wanted it to provide Z with an EOTAS package, funded through a personal budget.

September 2023: Annual review meeting

26. The Council held an annual review meeting of Z’s EHC plan on 14 September.
27. Mr X told the Council it had been a huge improvement for Z to be educated at home instead of school. But they now needed an EOTAS package with 1:1 support, funded by the Council to continue educating Z at home.

October 2023: Mr X’s complaint to the Council

28. Mr X did not hear anything from the Council about its decisions following the review meeting.
29. He complained to the Council and said it had failed to:

• respond to his request for an EOTAS package for Z;
• take any action to complete the review following the meeting; and
• provide Z with a suitable education.

30. The Council acknowledged Mr X’s complaint but did not provide any substantive response.

February 2024: Council’s first stage response to Mr X’s complaint

31. In reply to Mr X’s complaint the Council said:

• it accepted there had been failures in its communication with him; and
• EOTAS would only be considered when a child was on a school roll and it was agreed other education options were not appropriate. It was not provided as an alternative to EHE. It accepted it had not properly explained this to Mr X.

May 2024: Z’s final EHC plan

32. The Council issued Z’s final EHC plan on 2 May. The plan provided for the delivery of Z’s SEN and educational provision through an EOTAS package. It said a personal budget for the package had not been requested.
33. I understand the EOTAS package was put in place in July 2024.

July 2024: Council’s final complaint response

34. Mr X was unhappy with the Council’s first stage response. He asked, in February 2024, for his complaint to be escalated to the final stage of the Council’s complaints procedure.
35. The Council sent its final response in July. It accepted there was a delay arranging Z’s EOTAS package. It apologised for this but said it was unable to offer any financial redress for the impact of the delay.

My view – was there fault by the Council causing injustice?

a) Failure to complete the annual review within the statutory timescales

36. The Council responded promptly to Mr X’s request in August 2023 for an emergency review of Z’s EHC plan. But it then failed to take the action required to complete the review process.
37. Because Z was no longer being EHE, the Council was required to amend Z’s EHC plan, following the review meeting, to reflect this change and name Z’s new placement or type of education provision in the plan.
38. The Council should have issued the proposed amendments within four weeks of the meeting - by 12 October 2023. It should then have issued the final plan eight weeks later - by 7 December 2023.
39. The Council did not issue any proposed amendments following the review. The final plan was not issued until May 2024. This was a delay of five months.
40. These failures and delays were fault, causing Mr X uncertainty and distress about the outcome of the review and the proposed arrangements for Z’s education.

b) &c) Request for an EOTAS package/failure to provide Z with an education

41. Mr X told the Council, in August 2023, he was ending Z’s EHE.
42. I don’t consider the Council had a duty, at that stage, to immediately agree to provide Z with an EOTAS package. But it should have immediately considered its duty to provide Z with a suitable education, and what type of provision this should be, because it knew:

• As Z was no longer EHE, it now had a duty to provide them with a suitable education, either at school or elsewhere from the start of the school year 2023/2024; and
• unless the Council provided this, Z would not receive a suitable education.

43. I have not seen any information to show the Council considered its duty to provide Z with a suitable education from September 2023.
44. And there is no evidence it made any offer of educational provision for Z, either at a school or elsewhere, for September 2023 onwards, until the EOTAS package was put in place in July 2024.
45. These failures were fault.

Impact of this fault

46. The Council failed to provide Z with a suitable education from the start of the school year in September 2023, until July 2024, when I understand the agreed EOTAS package was put in place.
47. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
48. Here, the Council failed to make any educational or SEN provision for Z from September 2023 to July 2024. On this basis I consider the payment for Z’s loss of education provision should be at the top of our range.

d) Communication and complaint handling failures

49. The Council has accepted it failed to communicate properly with Mr X. It did not keep him informed about the EHC plan review process or the proposals for Z’s education and SEN provision.
50. I consider there were a number of further failures by the Council:

• it appears to have initially failed to note Mr X’s request for a personal budget for the EOTAS package, although I understand this has now been agreed;
• a delay of more than three months in issuing its stage 1 response to Mr X’s complaint, and a failure in this response to address Mr X’s most serious concerns; its delay completing the review process; and failure to provide Z with a suitable education;
• a further delay of four months in completing the stage 2 review of Mr X’s complaint;
• a failure in its stage 2 response to address the delay in completing the review process; and
• although it accepted there had been a delay in arranging the EOTAS package, it did not properly consider whether it should offer redress its failure to make this education provision for Z. The Council should be aware of our expectations about remedies where a council has failed to provide a child with a suitable education. These are set out in our published remedies guidance.

51. These delays and communication failures caused Mr X additional avoidable upset and worry.

Service improvements

52. We have made a number of recent decisions on complaints about the Council’s handling of EHC plan reviews and the provision of a suitable education. In these cases, the Council agreed to make the following service improvements:
1. demonstrate it has reminded Special Educational Needs and Disability (SEND) staff that where a child or young person’s circumstances around their education changes, the Council must review their Education, Health and Care plan to ensure they have an up-to-date record of their education and SEN provision;
2. issue reminders to all relevant staff in its Special Educational Needs and Disabilities (SEND) service:

• that where a child’s parents or young person asks for EOTAS arrangements to be specified in the EHC plan, the Council must consider and respond to this request;
• that where a child’s parents or young person asks for a personal budget during an Education, Health, and Care (EHC) plan review, the Council must consider and respond to this request; and
• about the importance of communicating properly with families, responding to specific queries, and keeping them updated about any delays.
3. issue reminders to staff involved in the complaint response in this case, that when the Council accepts fault, it should consider how it can put things right for the complainant, in line with the Ombudsman’s guide, ‘Effective complaint handling for local authorities’; and
4. remind relevant staff to respond to complaints in line with the Council’s procedure

53. On this basis, I don’t propose asking the Council to make any further service improvements regarding these complaint issues.
54. I have asked the Council to make a service improvement regarding its procedures when it is notified a child is no longer EHE.

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Action

55. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mr X for its failure to complete the annual review process within the statutory timescales; provide Z with a suitable education and its communication and complaint handling failures. This apology should be in line with our guidance on Making an effective apology:
2. pay Mr X, on Z’s behalf, £7,200 (£2,400 x three school terms from September 2023 to July 2024). This is a remedy for Z’s benefit to recognise the injustice the missed education has caused them: and
3. pay Mr X £350 to reflect the upset, frustration and uncertainty caused by its failures. This is a symbolic amount based on our guidance on remedies;
56. And within three months from the date of our final decision the Council has agreed to:
1. review its procedures to ensure it has a proper process in place for considering its duty to provide a child whose EHE has been ended with a suitable education; and
2. share guidance about its policy and procedure in these cases with relevant officers.
57. The Council should provide us with evidence it has complied with the above actions.

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Decision

58. I find fault by the Council causing injustice. The Council has agreed to take the above actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman