Summary: Miss X complained about the Council’s decisions and actions between November 2018 and November 2020 when the Council refused and then delayed issuing her son, G with an Education, Health and Care Plan. The Council did not issue G’s draft and final EHC Plan in line with statutory timescales following a tribunal order. It also issued Miss X with a flawed complaint response. The faults meant G did not have his plan in place for the start of the school year in September 2020. However, evidence shows this did not cause G a significant injustice. The Council agreed to pay Miss X £300 to acknowledge the frustration and time and trouble the matter caused her.

The complaint

1. Miss X complained about the Council’s handling of an Education, Health and Care (EHC) Plan for her son, G. Miss X said the Council’s refusal to assess and then issue G with a plan meant she was forced to home educate him. She said the delay in issuing G’s EHC Plan meant he did not receive suitable education between September 2018 and October 2020 which met his special educational needs.
2. Miss X also complained the Council failed to carry out the further assessments the SEND tribunal said were needed. She says as a result G is not receiving sufficient education to meet his special educational needs.

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What I have investigated

3. I have investigated the circumstances around Miss X electively home educating G in 2018 and delays in issuing G’s draft and final EHC Plan.

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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. 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.
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
8. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to Covid-19”.
9. 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)
10. 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.

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How I considered this complaint

11. I spoke to Miss X about her complaint and considered the information she provided.
12. I considered the Council’s response to our enquiry letter.
13. I considered relevant law and guidance including:
• The Children and Families Act 2014
• The Special Educational Needs and Disability (SEND) Regulations 2014.
• The SEND (Coronavirus) (Amendment) Regulations 2020
• The Coronavirus Act 2020
14. Miss X and the Council had the opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Education, Health and Care Plan (EHC) Plan

15. Children with complex needs may require an Education, Health and Care (EHC) Plan. This is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
16. Councils are responsible for making sure all the arrangements set out in in the EHC Plan are put in place.
17. The Council has a legal duty to ensure the educational and social care support set out in a final EHC plan is delivered. This duty is non-delegable. The local health care provider will have the duty to deliver the health care provision.

Timescales for preparation and issue of the EHC Plan

18. If a parent or school believes a child needs an EHC Plan, it can ask the Council to carry out a needs assessment to determine what special educational support the child needs.
19. Councils can decide not to carry out a needs assessment. It must let the parent know of this decision within 6 weeks of the request being made. The parent can appeal the Council's decision to the SEND tribunal.
20. If the tribunal orders the Council to make an EHC Plan then it must issue the draft plan within 5 weeks and finalised plan within 11 weeks of the tribunal’s order.

The SEND Tribunal

21. Certain SEN decisions have a right of appeal to the SEND Tribunal. We would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect the person to appeal.
22. Some of the decisions which are appealable and usually out of our jurisdiction include:
• A council’s refusal to carry out an EHC assessment or refusal to reassess.
• A council’s refusal to issue an EHC Plan.
• About the provision specified in section F of the EHC Plan.
23. Where a parent has appealed to the SEND Tribunal, we cannot investigate what happened between the date the appeal right arose until the appeal is completed where it is linked to the matters appealed. So, the Council’s actions during that period are outside the Ombudsman’s jurisdiction. It also means we cannot seek a remedy for lack of education or provision during that period.

The Coronavirus Act 2020

24. In May 2020 some aspects of the law on education, health and care (EHC) needs assessments and plans changed temporarily to allow councils, health commissioning bodies, education settings and other bodies who contribute to these processes more flexibility in responding to the demands placed on them by COVID-19.
25. The SEND Regulations 2014 were amended from 1 May until 28 September 2020. These amendments removed specific timescales set out in the SEND code of practice replacing these with the requirement to do so ‘as soon as reasonably practicable’. However, this was only if a council was unable to meet the timescales because of ‘a reason relating to the incidence or transmission of coronavirus’.

Elective home education

26. Parents have a right to educate their children at home which can include the use of tutors or parental support groups. Councils do not regulate home education. However, the law requires councils to make enquiries about what education is being provided when a child is not attending school full-time.
27. Councils should have a policy on elective home education setting how it will engage and communicate with parents. The Department for Education recommends each council makes contact with home educating parents on at least an annual basis to consider the suitability of the education provided. Where there are no concerns, this contact is likely to be very brief.
28. We can investigate how councils make enquiries about what education is being provided to children who do not attend school full-time and how they decide what is being provided constitutes ‘suitable education’.

What happened

29. Miss X has a son, G who in 2018 attended a mainstream primary school. Miss X said the school placed G on the special educational needs (SEN) register in 2017 after G’s nursery raised concerns about his speech. Miss X said the Council refused G an EHC Plan in February 2017.
30. In April 2018 G was diagnosed with autism. Miss X said she was unhappy with the lack of provision at the school for G. Miss X said she asked the school for better support and help the key worker service however this was declined. Miss X wrote to the school and informed it that she would meet G’s needs at home until it provided him with adequate support. Miss X sent a copy of the letter to the Council SEN team. In September 2018, the school registered G as receiving elective home education (EHE).
31. Records show the Council called Miss X in early September 2018 to clarify the situation. They show Miss X confirmed she would educate G at home but would consider putting him back into school if he was provided with an EHC Plan.
32. In November 2018 Miss X asked the Council to carry out an EHC assessment with G. The Council declined as records showed G’s needs were being met in a mainstream setting and that he was making progress as expected. Miss X was unhappy with this decision as G’s needs had increased since the previous assessment in 2017 so she appealed to the SEND tribunal.
33. In December 2018, the Council carried out a home learning monitoring visit with Miss X and G. The Council decided Miss X was providing adequate education. The is no record of Miss X raising any issues about G’s home education.
34. In April 2019, the tribunal ordered the Council to carry out an EHC assessment for G. The Council carried out the assessment however it declined to make an EHC Plan for G. It decided G’s needs could be met in a mainstream school setting without the need for an EHC plan. The Council recommended G return to school with SEN support to help him reintegrate.
35. In September 2019 Miss X returned G to a new mainstream primary school in year 4. The Council said it agreed a payment with the new school to support G’s transition back into education. Miss X said the school identified G was working at year 2 level and it arranged an occupational therapist (OT) assessment and referred him to a speech and language therapist (SALT). Miss X said it was clear to her that he required an EHC Plan, so she appealed the Council’s decision not to issue one with the tribunal.
36. The tribunal was due to hear Miss X’s appeal in January 2020 however it adjourned the hearing and asked the Council to carry out further assessments. The tribunal asked the Council to reconsider its decision after carrying out the new assessments.
37. The Council carried out new assessments with G during January and February 2020 however it again declined to issue an EHC Plan. The Council said G’s needs were being met at the new school. Miss X lodged a further appeal.
38. Miss X complained to the Council. She complained the Council’s refusal to assess and issue G with an EHC Plan meant she was forced into removing G from school and teaching him at home. She said as a result G had missed over a year of full-time education.
39. The Council responded to Miss X’s complaint and did not uphold her complaints. It said Miss X chose to home educate G and confirmed this decision to officers when they carried out home visits. The Council said it based its decisions about G’s EHC assessment and EHC Plan on information it had at the time. As Miss X had used her right of appeal at the tribunal the Council declined to comment on this matter any further.
40. The tribunal heard Miss X’s appeal in April 2020 and ordered the Council to make an EHC Plan for G. The tribunal order said in its conclusions that further assessments remained necessary with regards to speech and language and Attention deficit hyperactivity disorder (ADHD).
41. Miss X called the Council for an update four weeks after the tribunal hearing. The Council informed her that it was appealing the tribunal’s decision to order it to make a EHC Plan for G. The Council told Miss X that G’s learning difficulties were down to his year out of school and therefore did not require an EHC Plan.
42. Records show the Council contacted the tribunal and asked if it should still comply with the order and issue the draft within 5 weeks. The tribunal informed the Council that its order stood and that the Council must comply with the tribunal order until the outcome of the appeal. Miss X asked the Council to escalate her complaint to stage 2 of its procedure. She asked the Council to issue G’s draft EHC Plan and to carry out assessments while the tribunal considered its appeal.
43. In July 2020 the tribunal refused to give permission for the Council to appeal and said its original decision of April 2020 stood for it to make an EHC Plan for G.
44. The Council issued its final complaint response to Miss X in July 2020. The Council said that the original tribunal order did not stand whilst the appeal procedures were ongoing. The Council said it was not bound by the tribunal until it received the response in July to its appeal. It confirmed it had now received the tribunal’s decision following its appeal and said it would now issue the draft plan without delay.
45. The Council issued G’s draft EHC Plan at the start of August 2020. Records show Miss X asked for a number of changes to the draft plan. The Council issued a revised draft plan in September 2020. A virtual meeting was then held to discuss the revised plan. Records show the funding and costs were discussed at the meeting as well as SALT and OT assessments. The Council asked G’s school to provide some costings.
46. The Council issued G’s final EHC Plan at the start of November 2020. This was a delay of 20 weeks from the tribunal’s original order in April 2020. Section H of the plan included provision to assess G for ADHD and for a further assessment for speech and language, however, without timescales.
47. Miss X remained unhappy with the Council and complained to us in July 2020.
48. Since bringing her complaint to us, Miss X complains the content of the final plan of November 2020 does not include provision for SALT and ADHD as directed by the tribunal in April 2020.

My findings

49. Records show Miss X notified the school and the Council about her intention to remove G from school and teach him at home in August 2018. Miss X also sent a copy of her letter to the school governors. The Council carried out an initial assessment during which it offered advice on what provision Miss X could provide for G. It then carried out a home monitoring visit and was satisfied G’s provision met the legal requirements. There is no evidence which shows Miss X was forced into home schooling G and she did not raise this issue during the monitoring visit. It was open for Miss X to send G back to school at any time which she did in September 2019. The Council carried out its duties in line with the law and relevant guidance and was not at fault.
50. The tribunal ordered the Council to make an EHC Plan for G in April 2020. The law says in these circumstances that the Council must issue a draft plan within 5 weeks and the final plan within 11 weeks of the tribunal’s order. The Council asked the tribunal for permission to appeal the order. However, the tribunal told the Council that it must still comply with the order until the outcome of the Council’s request to appeal. Despite Miss X chasing the matter between May and July 2020 there is no evidence the Council took any steps to progress G’s draft plan as ordered by the tribunal. That was fault.
51. Records showed the Council issued G’s draft plan in July 2020 and the final plan in November 2020 which was a delay of 20 weeks. The original deadline to issue the final plan fell in June 2020 which was within the relaxation of the timescales in line with amended SEND regulations. However, the relaxation of timescales only apply if the Council was unable to meet the timescales because of a ‘a reason relating to the incidence or transmission of coronavirus’.
52. The evidence shows that the delay in issuing G’s final EHC Plan was not because of COVID-19. Following the issue of G’s draft EHC Plan Miss X asked for changes and then there was a virtual meeting to discuss the revised draft and issues such as funding and costing. These are matters the Council could have resolved much earlier if it had issued the draft plan in line with the statutory timescales which the records show it was obliged to do. Had it done so it is likely it would have issued G’s final plan in time for the start of the school year in September 2020. Therefore, the Council was at fault for failing to issue G’s final EHC Plan in line with statutory timescales. It meant G did not have the plan in place for the start of the school year in September 2020. However, evidence from G’s school shows the provision outlined in section F was already in place for G at the start the term in September 2020. A report from G’s educational psychologist in January 2021 states G was not showing any significant difficulties with underlying verbal processing. Therefore, the evidence from professionals working with G shows the delay in issuing the final plan did not cause G a significant injustice.
53. Miss X complained that the Council had not issued G’s draft plan within 5 weeks of the tribunal’s order in April 2020. The Council in its final complaint response said the tribunal’s order did not stand whilst its appeal was ongoing and therefore it was not bound by it. However, the Council had not actually appealed, it had asked for permission to appeal which the tribunal ultimately refused. Regardless, the tribunal had already clarified with the Council in May 2020 that the original order stood until informed otherwise. The Council’s complaint response to Miss X was flawed which was fault. It caused Miss X frustration and time and trouble.
54. Miss X also complained the Council failed to act on the tribunal’s order to carry out assessments for ADHD and SALT. However, having read the tribunal order I am satisfied the only order was for the Council make an EHC Plan for G so it was not fault.
55. The tribunal’s conclusions were that further assessments remained necessary with regards to speech and language and ADHD, and it hoped they would be in place by September 2020, but it was not part of the section marked ‘Order’. The tribunal commented on these assessments but did not order them. Section H of the EHC plan, issued after Miss X complained to us, stated G required provision for assessments for ADHD and SALT. If Miss X was unhappy with the content of G’s final EHC Plan, she had a right of appeal to the SEND tribunal.

Agreed action

56. Within one month of the final decision the Council agreed to:
• Apologise to Miss X and pay her £300 to acknowledge the frustration and time and trouble caused by the delay in issuing G’s draft and final EHC Plan and for its flawed stage 2 complaint response.
• Review its procedures and ensure its staff are aware they must still work to issue draft and final EHC Plans within statutory timescales when appealing against a tribunal decision.

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Final decision

57. I completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Parts of the complaint that I did not investigate

58. I did not investigate what happened during the period November 2018 to April 2020. This is because the tribunal considered Miss X’s appeals about the Council’s refusal to both carry out an EHC assessment and then to issue G with an EHC Plan. Therefore, the Council’s actions and resulting consequences of those actions during this period are outside of our jurisdiction.
59. I also did not investigate Miss X’s concerns and issues relating to the content of G’s final EHC Plan. This occurred after she complained to us and therefore was not part of this investigation. Miss X also had a right of appeal to the SEND tribunal about the final Plan and we would consider it was reasonable for her to use this right.

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Investigator's decision on behalf of the Ombudsman