Summary: Ms E complained the Council failed to provide her son with the education and specialist provision required in his Education, Health and Care Plan from March 2019 onwards. She also complained the Council delayed matters after the annual review in November 2019. We find the Council was not at fault for not providing Ms E’s son with education and specialist provision. We also find the Council was not at fault for the delays after the annual review. However, we do find the Council delayed dealing with Ms E’s complaint. The Council has agreed to our recommendations to address the injustice caused.

The complaint

1. Ms E complained the Council failed to provide her son (F) with the education and the specialist provision required in his Education, Health and Care (EHC) plan from March 2019 onwards. She also complained the Council delayed matters after the annual review in November 2019.
2. Ms E says the family has suffered anxiety and stress because of the Council’s actions. She says F has missed out on a significant amount of specialist provision and education.

Back to top

What I have investigated

3. I have investigated the education and specialist provision the Council provided to F from 24 July 2019 to 25 March 2020. I have not investigated the period before or after these dates for the reasons explained at the end of this statement.

Back to top

The Ombudsman’s role and powers

4. 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)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)
6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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 care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. If we are satisfied with a council’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)
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

Back to top

How I considered this complaint

10. I considered information from Ms E. I made written enquiries of the Council and considered information it sent in response.
11. Ms E and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

What I found

Relevant law and statutory guidance

12. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education, or name a different school. Only the tribunal can do this.
13. The Children and Families Act 2014 says councils are responsible for making sure that arrangements specified in EHC plans are put in place and reviewed each year. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out in an EHC plan has not been provided or where there have been delays in the process.
14. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child’s plan, or the fact that no school or educational setting is named.
15. Section 19 of the Education Act 1996 says councils are responsible for the provision or suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them.
16. Statutory guidance on special educational needs provision (Special educational needs and disability code of practice: 0-25 years) confirms that councils must review an EHC plan at least once every 12 months. The guidance says that within four weeks of the review meeting, the council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school.
17. Paragraph 9.194 says where the council proposes to amend an EHC plan, it must send a copy of the existing plan, and a notice providing details of the proposed amendments, to the child’s parent or the young person.
18. Paragraph 9.195 confirms the parent or young person must be given 15 days to comment on the proposed changes. The parent or young person can request the council name a school or institution in the EHC plan.
19. Paragraph 9.196 says that after receiving any representations from the child’s parent or the young person, if the council decides to continue to amend the EHC plan, it must issue the final amended plan as quickly as possible and within eight weeks of the original amendment notice/draft amended EHC plan.
20. 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.
21. 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.
22. The Department for Education issued new guidance in April 2019 to reflect the growing concern about children being educated at home who may not be receiving suitable education or who may be at risk of harm.
23. The 2019 guidance says that the primary responsibility remains with the parent, but councils have a social and moral duty to ensure that a child is safe and being suitably educated. Where there is clear evidence that the child is receiving suitable education, the need for contact should be minimal.
24. The information needed to satisfy the test of whether suitable education is being provided depends on the facts of the case and judgement of the council. But, if a parent refuses to provide a substantive response to a council’s enquiries about the education being provided, that refusal is likely to satisfy the test.
25. Where parents do not provide sufficient evidence, councils can serve a School Attendance Order, naming a school which the child should attend. Parents can, if unhappy with the serving of such an order, refer the matter to the Secretary of State.

What happened

26. F has special educational needs. The Council issued a final EHC plan for him on 5 December 2018. It named School G as the most appropriate school.
27. Ms E appealed to the Tribunal in February 2019 about the Council’s choice to name School G and the provision in his EHC plan.
28. F started attending School G on 18 March. Ms E contacted the Council on 25 March and requested an emergency meeting at School G. She said F was displaying signs of sexualised behaviour and he was at risk. The Council says Ms E’s allegations were unsubstantiated.
29. Ms E attended a meeting at School G on 4 April. She emailed the Council on 9 April and said she was keeping F at home until appropriate alternative arrangements could be made as his needs had changed. She said School G was not safe for F.
30. Ms E wrote to the Tribunal to withdraw her appeal. The Tribunal issued a withdrawal order on 23 July.
31. Ms E wrote to the Council and School G on 29 August and asked to remove F’s name from the admissions register. She said she had removed F from School G in April because of safeguarding concerns, and she been providing him with education since.
32. The Council emailed Ms E on 8 October and attached a copy of F’s amended draft EHC plan. Ms E responded and said it was premature as the Council needed to arrange an early annual review.
33. Ms E forwarded her email from 29 August to the Council officer she had been dealing with. The Council emailed Ms E a letter on 17 October and said as she had opted for home education, she would need to respond within 15 days and confirm what provision she was putting in place for F. Ms E responded on the same day and said she would discuss the matter at the early annual review.
34. The Council emailed Ms E on 18 November and said she had not responded to its letter of 17 October. It said it had to ensure that F was receiving suitable education.
35. The Council issued a notice of intention to serve a School Attendance Order on 24 November. It said that if Ms E did not provide evidence that F was receiving sufficient full-time education within 15 days, it would issue a School Attendance Order naming School G.
36. Ms E responded to the notice of intention on 28 November. She said she had asked the Council to consult with different schools for F. The Council responded and said as F had an EHC plan, School G was identified as the school that could best meet his needs. It said she had 15 days to evidence what education she was providing for F.
37. The annual review took place later that day. It was agreed that Ms E would complete the home education form and provide further reports. The Council said it would update the EHC plan when it received further information.
38. The Council emailed Ms E on 2 December and confirmed it had received an additional report from her. It asked for her views on F’s progress. It also chased for a response to the home education form.
39. Ms E provided the Council with her views on F’s progress on 14 January 2020.
40. Ms E emailed her local councillor on 14 January and copied in the Council’s complaints department. She said the Council had delaying contacting her after the annual review on 28 November. She also complained the Council had failed to provide F with any education. She received an acknowledgment from the councillor’s office on the same day.
41. The Council issued the School Attendance Order on 20 January, as Ms E has failed to provide it with evidence that F was receiving a suitable education. It ordered her to send F to School G.
42. The Council sent Ms E a copy of the amended EHC plan in the post on 27 January and asked for her views within 15 days.
43. Ms E emailed the Council on 29 January and said she could not open the email it had sent attaching the amended EHC plan. The Council responded on the same day and explained how to access the email. It also said it had sent a copy of the amended EHC plan in the post.
44. Ms E emailed the Council on 13 and 19 March and said she had not received the annual review papers from November 2019 and a copy of the EHC plan. She copied the email to Council’s complaints department.
45. The Council issued F’s final EHC plan on 25 March, and it named School G. It emailed Ms E on the same day and confirmed it had sent it in the post.
46. Ms E chased the Council for a copy of the final EHC plan on 1 April. The Council emailed her back the same day and said it had previously sent a copy of it in the post. It emailed Ms E again and sent a copy of the EHC plan via encrypted email. It asked her to contact it if she could not access it.
47. Ms E emailed the Council on 21 April and asked it to send the EHC plan via unencrypted email. The Council did this on the same day.
48. The Council responded to Ms E’s complaint and confirmed it had sent copies of the draft and final EHC plan on several occasions.
49. Ms E emailed the Council on 21 May and said it had failed to address previous complaints she had raised.
50. Ms E appealed to the Tribunal about the provision in the final EHC plan and the school placement on 19 May.
51. After prompting from the Ombudsman, the Council emailed Ms E on 21 August and asked why she remain dissatisfied with its initial response to her complaint. Ms E responded and explained F had received no educational support since March 2019.
52. The Council issued its stage two response to Ms E’s complaint on 4 November. It said:

• F did not attend School G. Once Ms E withdrew her Tribunal appeal, it was expected he would return to School G.
• It could not deliver the provision as F did not attend School G.
• There was a delay in issuing the draft EHC plan as it was waiting for Ms E’s views and documentation from its social care department.
• There was a two-day delay in issuing the final EHC plan.

53. During the early stages of the Tribunal appeal, the Council agreed to name School H in the EHC plan, which was Ms E preferred choice. F started attending School H on 4 November. The Tribunal appeal concluded on 11 June 2021.

Back to top

Analysis

54. The Ombudsman cannot investigate late complaints unless there are good reasons to do so. A late complaint is when someone takes more than 12 months to complaint to us about something a council has done. Ms E contacted her local councillor and copied in the Council’s complaints department in January 2020. She came to the Ombudsman in February 2020, but she had not exhausted the Council’s complaints procedure. Ms E forwarded us a copy of the Council’s final response in November 2020. I have exercised discretion and will consider the Council’s actions from after the Tribunal’s withdrawal order (23 July 2019) because of the delays in dealing with Ms E’s complaint.
55. I do not find the Council was at fault for failing to provide F with the education and specialist provision as per his EHC plan. When the Tribunal issued the withdrawal order on 23 July 2019, it would have been the school summer holidays. Ms E wrote the Council on 29 August 2019 and said she wanted to withdraw F from the admissions register and educate him at home. As Ms E confirmed she was taking responsibility for F’s learning, the Council did not have a legal duty to provide him with the education and specialist provision in his EHC plan. F had a place at School G where he would have received the education and specialist provision in his EHC plan, but Ms E chose not to send him there.
56. The statutory guidance says within four weeks of the annual review meeting, the Council must decide whether it will keep the EHC plan as it is, amend, or cease to maintain the plan. The annual review took place on 28 November 2019. The Council issued the amended EHC plan on 27 January 2020. Although there was a four-week delay, this is because the Council was waiting on Ms E’s views on F’s progress. She provided this on 14 January 2020. Therefore, I do not criticise the Council for the delays incurred.
57. The Council had until 23 March 2020 to issue the final amended EHC plan. It did so on 25 March 2020. I do not find a delay of two working days significant enough to be fault.
58. Although I have not found fault with the Council’s actions in relation to the EHC plan or annual review, there was a delay in dealing with Ms E’s complaint. The Council’s complaints procedure says it will issue a full response to a complaint a stage one within 20 working days. It will provide a response at stage two within 25 working days.
59. In Ms E’s case, she emailed a letter of complaint to her local councillor on 14 January 2020 and copied in the Council’s complaints department. Although the letter was addressed to the councillor, it was about the Council’s service, and it was copied to the complaints department. Therefore, I would have expected the Council to acknowledge and respond to the issues in the letter. This did not happen, which is fault.
60. Ms E emailed the Council on the 21 May 2020 and said it had failed to answer her previous complaints. I cannot see the Council responded to this email and clarified with Ms E what her complaints were, until prompted by the Ombudsman. This is fault which has caused Ms E upset and frustration. The Council should remedy this injustice.

Back to top

Agreed action

61. To address the injustice caused by fault, by 16 September 2021 the Council has agreed to:

• Apologise to Ms E for the upset and frustration caused by the delay in dealing with her complaint.
• Issue written reminders to relevant staff to ensure they adhere to timescales set out in the complaints procedure.

Back to top

Final decision

62. There was fault by the Council, which caused Ms E an injustice. The Council has agreed to my recommendations and therefore I have completed my investigation.

Back to top

Parts of the complaint that I did not investigate

63. The courts have said where a loss of education coincides with an appeal about an EHC plan and there is a link between them, the period from the date on which the appeal right arises until the appeal is heard cannot be investigated by the Ombudsman. Therefore, I have only investigated the education and specialist provision the Council provided to F from 24 July 2019 to 25 March 2020.

Back to top

Investigator's decision on behalf of the Ombudsman