Summary: Ms X says the Council delayed completing an education, health and care needs assessment, failed to provide her son with education, wrongly said she had decided to home educate her son, delayed consulting schools and delayed responding to her complaint. There is no fault in failing to put in place alternative provision for Ms X’s son. The Council delayed completing the needs assessment, failed to follow its elective home education policy, delayed consulting schools and delayed responding to the complaint. That caused Ms X distress and uncertainty. The remedy the Council has already offered Ms X, plus guidance for officers, is satisfactory remedy.

The complaint

1. The complainant, Ms X, complained the Council:
• delayed completing an education, health and care (EHC) needs assessment;
• failed to provide her son with education while he was out of school between March 2023 and October 2024;
• wrongly said she had elected to home educate her son when she had not;
• delayed consulting schools and consulted unsuitable placements; and
• delayed considering her complaint.
2. Ms X says the Council’s actions meant her son missed out on education and was socially isolated, which impacted on his mental health. Ms X says she also experienced a significant impact on her own mental health and had to borrow money to fund her son’s education.

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The Ombudsman’s role and powers

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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. 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)
7. 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)
8. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
9. 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

10. As part of the investigation, I have:
• considered the complaint and Ms X’s comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
11. Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Education

12. The Education Act 1996 (Section 19) says education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child's age, ability and aptitude, including any special needs.
13. 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 is "available and accessible to the child". (R (on the application of DS) v Wolverhampton City Council 2017)

Special educational needs

14. A child or young person with special educational needs (SEN) may have an education, health and care plan (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 council can do this.
15. The Special Educational Needs and Disability Code of Practice is statutory guidance (the code of practice). It sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• Where a Council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young per-son within six weeks.
• The process of assessing needs and developing EHC Plans "must be carried out in a timely manner". Steps must be completed as soon as practicable.
• If the Council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue an EHC Plan within 16 weeks.
16. Following the completion of an EHC needs assessment, if the local authority decides an EHC Plan is not necessary, it must notify the child's parent or the young person, the early years provider, school or post-16 institution currently attended, and the health service and give the reasons for its decision. This notification must take place as soon as practicable and at the latest within 16 weeks of the initial request or of the child or young person having otherwise been brought to the local authority's attention. The local authority must also inform the child's parent or the young person of their right to appeal that decision and the time limit for doing so, of the requirement for them to consider mediation should they wish to appeal, and the availability of information, advice and support and disagreement resolution services.

The Council’s elective home education policy

17. The policy sets out parents rights to educate their children at home, together with the legal duties and responsibilities of the local authority. It also sets out the way the local authority carries out its duties under the Education Act 1996 with regard to elective home education.
18. Elective home education is the term used by the Department for Education to describe when a parent makes the decision to provide the education for their child themselves at home.
19. Parents have primary responsibility for their children’s education. However, home education needs a holistic approach to issues of suitability. Therefore all relevant local authority services including attendance and children’s social care will work together to ensure a good education outcome.
20. The local authority will make informal enquiries of parents to establish what education is being provided in order to fulfil this duty. This involves arranging meetings with home educating families.
21. The local authority has the same safeguarding responsibilities for children educated at home as for other children not educated at home and will work collaboratively with relevant agencies and professionals as is necessary.

What happened

22. Ms X’s son was attending an independent school. That school told Ms X it intended to remove her son’s bursary from the end of the spring term in March 2023 due to some issues at school.
23. Ms X asked the Council for an EHC needs assessment on 23 December 2022. The Council told Ms X the application she had provided was incomplete and did not have enough evidence to support an assessment. Ms X provided further evidence on 1 March 2023, which included an educational psychology report she had paid for.
24. On 3 May the Council refused the EHC needs assessment request. The Council overturned that refusal on 6 July when it agreed to assess Ms X’s son.
25. The Council told Ms X in August 2023 it had contacted the assigned school which confirmed it could meet her son’s needs. Following a further complaint in October 2023 the Council told Ms X it was satisfied the assigned school could meet her son’s needs. The Council told Ms X about the process for elective home education if she did not want to send her son to the school. The Council explained because it was satisfied her son’s needs could be met in a mainstream school and continued to consider the assigned school suitable it would not offer home tuition. Ms X arranged online tuition for her son, which she paid for.
26. On 19 October the Council declined to issue an EHC Plan. Ms X appealed.
27. Ms X contacted the Council again in January 2024 to tell it the assigned school had said it could not meet her son’s needs. The Council told Ms X it still considered the school could admit her son. The Council discussed the possibility of an attendance order but noted Ms X had arranged education for her son. The Council therefore contacted Ms X to confirm she was electively home educating her son. Ms X made clear she was not electively home educating her son and felt forced into that position.
28. The Council arranged for its own educational psychologist report during the tribunal proceedings.
29. On 28 May the first-tier Tribunal decided the Council should issue an EHC Plan.
30. Ms X asked the Council which schools it would consult. The Council said it would decide once it had completed the draft EHC Plan. Ms X chased the Council for progress throughout June 2024.
31. The Council issued a final EHC Plan on 1 August and began consulting schools. Ms X raised concerns about some of the schools consulted and why the Council only consulted three schools. The Council later agreed to consult other schools Ms X had identified.
32. At the beginning of September the Council told Ms X it would put in place tuition until it had named a school. The Council arranged for 10 hours per week tuition in maths and english.
33. The Council told Ms X about an offer from a school on 1 October. Ms X accepted that offer and her son started at the school later in October. That school agreed for Ms X’s son to repeat a year.
34. Following a complaint the Council accepted it had delayed considering the EHC needs assessment, delayed consulting schools in 2024 and delayed responding to the complaint. The Council offered Ms X £850 and apologised.

Analysis

35. I have exercised the Ombudsman’s discretion to investigate what has happened since Ms X first sought an EHC needs assessment in December 2022. That is because I am satisfied Ms X has had significant health difficulties and was under stress at the time.
36. Ms X says the Council delayed completing an EHC needs assessment. The code of practice requires the Council to issue a decision on a request for an EHC needs assessment within 6 weeks. In Ms X’s case the Council did not consider she had presented a complete request for an EHC needs assessment until 1 March 2023. The Council should therefore have sent Ms X a decision about whether to begin an assessment by 12 April. However, the Council did not write to Ms X until 3 May. That delay is fault, which delayed the overall process of the Council issuing an EHC plan.
37. I recognise Ms X believes fault by the Council meant she had to pay for her own educational psychology report. However, I have seen nothing in the documentary evidence to suggest the Council told Ms X she needed to secure her own educational psychology report for the Council to begin an assessment. I therefore could not say Ms X had to secure her own educational psychology report due to fault by the Council.
38. I further note when the Council issued a final EHC Plan the outcomes and provision in that EHC Plan were based on the Council’s educational psychology report, rather than the one Ms X paid for. In those circumstances I cannot recommend the Council refund the cost of the educational psychology report.
39. I understand why Ms X has concerns about the delay securing an EHC Plan. However, I am satisfied those delays relate to the Council’s decision that Ms X’s son did not require an EHC Plan, which meant delays while Ms X appealed to tribunal. As Ms X had, and exercised, her right of appeal I cannot comment on any delays after she appealed.
40. Ms X says the Council failed to provide her son with education while he was out of school between March 2023 and October 2024. Having considered the documentary evidence, I am satisfied throughout that period Ms X's son had a school place available to him. I recognise Ms X did not believe that school was a suitable placement for her son. I also recognise Ms X provided the Council with evidence from some members of staff at the school which raised concerns about whether the school could meet Ms X's son's needs.
41. The evidence I have seen though satisfies me the Council considered the assigned school a suitable placement for Ms X's son until after tribunal in 2024. I say that because when responding to complaints from Ms X in 2023 the Council made clear that irrespective of the school's view it considered the school suitable for Ms X's son. The Council repeated that information in January 2024. In those circumstances the Council is not at fault for failing to make alternative provision available for Ms X's son. That is because the Council only has to consider putting in place alternative provision when it considers a suitable school placement is not available for a child.
42. I appreciate Ms X disagrees about whether the school was suitable. However, it is not the Ombudsman's role to decide that. Only a tribunal can decide that and that is what happened in this case because tribunal said Ms X’s son needed special educational needs provision that a mainstream school could not deliver.
43. Ms X says the fact the Council put in place alternative provision in September 2024 means it could have put provision in place earlier. I am satisfied there was a material difference when the Council put in place alternative provision in September 2024 though. By then the tribunal had decided the special educational needs provision Ms X's son needed could not be delivered in a mainstream school and the Council had issued a final EHC Plan. I therefore do not consider the fact the Council put in place alternative provision in September 2024, waiting for Ms X’s son starting at his new school, is evidence the Council was at fault for failing to do so earlier. To say that I would have to comment on whether the assigned school was suitable, which I cannot do.
44. I understand Ms X's concern as she paid for education provision for her son. Ms X says she did not agree to electively home educate her son and instead felt forced to do so because the Council would not arrange alternative provision. As I said earlier, I am satisfied the Council considered the assigned school suitable until the tribunal in 2024. In those circumstances if Ms X did not want to send her son to the assigned school and had not applied for a place at a different school her only option was to home educate her son. While that may not have felt like a voluntary decision for Ms X the evidence I have seen satisfies me the Council would likely, on the balance of probability, have taken action against Ms X to ensure her son attended the assigned school. I therefore could not criticise the Council for treating Ms X as electively home educating her son.
45. I am concerned though the Council did not follow its elective home education policy in this case. I have seen no evidence the Council made any checks to see what education was in place for Ms X's son and whether that was suitable. Nor did the Council complete any welfare checks to ensure Ms X's son was safe. Those are checks the Council should have undertaken under its elective home education policy and failure to do that is fault.
46. Ms X has also raised concerns about the placements offered and consulted on for her son after the Council agreed to complete an EHC Plan. Ms X says not only did the Council consult schools which were not suitable for her son but it also delayed doing so.
47. The Council accepts it should have begun consulting schools earlier than it did. That is fault. I cannot say whether earlier consultation with schools would have meant Ms X's son could have started at a new school in September 2024. That is because I cannot speculate about whether the schools consulted would have responded during the school holidays. The code of practice is also clear councils must give schools longer to reply when consultations are sent during the holiday period. In those circumstances I consider Ms X's injustice is limited to her uncertainty and frustration.
48. I am concerned though the Council did not at first consult all schools at the same time. Ms X had provided the Council with an extensive list of schools she wanted consulted. The Ombudsman would expect the Council to send consultations out at the same time rather than on a piecemeal basis. To do that could result in further delay securing a suitable school placement, particularly if the first ones consulted could not provide a place.
49. I am satisfied the Council sent out further consultations during the school holidays though when Ms X raised concerns. It therefore does not seem to me likely, on the balance of probability, failing to consult all the schools at the same time delayed Ms X's son starting at a new school, particularly given the closeness to the school holidays. I therefore consider Ms X’s injustice is limited to her distress and uncertainty.
50. In terms of consulting schools which were not appropriate for Ms X’s son, I am satisfied the Council apologised when Ms X pointed that out. I welcome that.
51. The Council accepts it delayed responding to Ms X’s complaint. That is fault.
52. I now have to consider an appropriate remedy for Ms X. As I have set out in this statement, because of the delays and failure to follow processes properly Ms X has experienced distress, is left with some uncertainty and has had to go to time and trouble to pursue her complaint. The Council has offered Ms X an apology and £850. I consider that a satisfactory personal remedy for Ms X.
53. As remedy for the procedural failings in this case I recommended the Council provide guidance to officers working in education to cover:
• the need to follow the elective home education policy when a parent arranges education outside of school for their child;
• the need to consult schools even during school holidays;
• the need to ensure officers consult all the schools it has identified at the same time rather than on a piecemeal basis.
54. The Council has agreed to my recommendations.

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Action

55. The Council has already put in place an appropriate personal remedy for Ms X.
56. Within one month of my decision the Council should provide guidance to officers working in education to cover:
• the need to follow the elective home education policy when a parent arranges education outside of school for their child;
• the need to consult schools even during school holidays;
• the need to ensure officers consult all the schools it has identified at the same time, rather than on a piecemeal basis.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman