Summary: Mrs X complained about the Council’s handling of her daughter, Y’s, special educational needs. She said the Council failed to complete annual reviews of Y’s Education Other Than At School package. Mrs X also complained the Council failed to put in place a suitable education package for Y. Mrs X said this impacted her mental health and Y’s, who also missed education. The Council was not at fault.

The complaint

1. Mrs X complained about the Council’s handling of her daughter, Y’s, special educational needs. She said the Council failed to complete annual reviews of Y’s Education Other Than At School (EOTAS) package. Mrs X also complained the Council failed to put in place a suitable education package for Y. Mrs X said this impacted her mental health and Y’s, who also missed education.

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. 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 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)

Back to top

What I have and have not investigated

4. I have investigated Mrs X’s complaint since November 2023. I reference events before this for context.
5. I have not investigated earlier events as Mrs X could have complained about them earlier. This is a late complaint. There is not enough reason to accept those parts of it for investigation now.

Back to top

How I considered this complaint

6. I read Mrs X’s complaint and spoke to her about it on the phone.
7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Background information

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.
11. There is a right of appeal to the Tribunal against a council’s:

• description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan;
• amendment to these elements of an EHC Plan;

12. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
13. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
14. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
15. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
16. 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.
17. 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.
18. 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.

What happened

19. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
20. Y has an EHC Plan. The Council issued an EHC Plan in October 2021. This plan named an EOTAS package of education.
21. In September 2022, following changes to the tuition the Council provided, Mrs X told the Council she wanted to home educate Y. The Council asked if Mrs X wanted alternative provision or elective home education. Mrs X confirmed she wanted elective home education.
22. Mrs X chased the Council in April 2024. She said the Council had not completed an annual review since 2021 and Y was not receiving any education. The Council arranged the annual review.
23. The Council completed the annual review meeting in May 2024. The Council recommended amending the EHC Plan.
24. The Council sent the draft plan to Mrs X in June 2024. It also agreed to complete an Educational Psychology (EP) assessment to inform the final plan.
25. The EP completed the report in July 2024.
26. Mrs X contacted the Council in August 2024. She noted she had seen the Council, and the EP, recorded she was electively home educating Y. She said this was not true and asked for a personal budget.
27. The Council issued the final EHC Plan in September 2024.
28. Mrs X complained in October 2024. She complained the Council had not reviewed the EHC Plan in three years and had not provided the EOTAS package in the plan. Mrs X said she disagreed with the final plan. She felt it should have sensory provision and EP recommendations.
29. The Council responded to Mrs X’s complaint in November 2024. The Council said it agreed with Mrs X’s request to provide EOTAS from August 2024, when she asked for it. The Council confirmed it agreed to a bespoke education offer when it issued the September 2024 EHC Plan.
30. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to fund Y’s education.
31. In response to my enquiries the Council stated Mrs X was electively home educating Y. The Council also accepted it did not review Y’s EHC Plan for three years. The Council offered to apologise and pay Mrs X £1,000.

My findings

Education and EHC Plan provision

32. The Council stated Mrs X was electively home educating Y. Mrs X does not agree. The Council has provided communications from September 2022, evidencing Mrs X said she wanted to electively home educate Y. The Council asked Mrs X to clarify what she wanted. She confirmed “we want to electively home educate” Y. This evidences Mrs X did decide to electively home educate Y.
33. When an individual chooses to educate their child at home, they take on financial responsibility for the education and the plan provision. The Council does not have a responsibility to provide education and plan provision if the child is electively home educated. The Council was not at fault.
34. Mrs X confirmed she did not want to electively home educate Y in August 2024. The Council accepted this and started to provide tuition in September 2024.
35. The Council issued an EHC Plan in September 2024. Mrs X did not agree with the content of the plan, saying it needed different provisions and without this, Y could not access the tuition. Mrs X could appeal to the Tribunal as she did not agree. As set out in paragraph 12, I cannot consider events after the appealable decision. The Council was not at fault.

Reviews

36. Mrs X complained the Council did not review the plan for three years. In response to my enquiries, the Council accepted this. It offered Mrs X an apology and £1,000.
37. However, this investigation has only considered events from November 2023. Since this date the Council has reviewed the plan within six months. As I cannot consider events before November 2023, I cannot make a finding on the Council actions before this date. The Council was not at fault.
38. It is for the Council to contact Mrs X directly to make its offer of an apology and financial payment for the fault it identified. This does not form part of my decision.

Back to top

Final decision

39. I have completed my investigation. The Council was not at fault.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman