Summary: Ms X complained the Council failed to arrange a school place or educational provision for her child Y. The Council was at fault as it failed to identify a suitable school for Y, failed to ensure Y received the provision in their Education, Health and Care Plan and has failed to issue a final Plan following Y’s annual review. This caused Ms X distress and frustration, delayed her right of appeal and meant Y has missed out on suitable education provision. The Council has agreed to apologise and make payments to Ms X and Y and to take action to improve its services.

The complaint

1. Ms X complained the Council failed to arrange a school place or to provide any education for her child Y since it produced a final EHC Plan for Y in February 2022. As a result, Y has missed out on education and on attending school and this has caused Ms X distress and time and trouble in trying to get this addressed.

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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. 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)
3. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), 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). 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.
5. 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.
6. 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)
7. 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 the final decision with Ofsted.

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What I have and have not investigated

8. We will not normally investigate a complaint where there is a right of appeal, and it was open to the complainant to use that right. The Council issued a final EHC Plan for Y in February 2022. This named a type of school but did not name a particular school. Mrs X did not appeal the Plan as she believed the Council was continuing to seek a suitable school for Y. I therefore consider it reasonable for Ms X not to have appealed and so have investigated this complaint.

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How I considered this complaint

9. I have considered information supplied by Ms X and have discussed the complaint with her on the telephone. I have considered the Council’s response to my enquiries and the relevant law and guidance.
10. I gave Ms X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

The relevant law and guidance

Special educational needs (SEN)

11. 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.
12. The EHC Plan is set out in sections which include: 
• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 
13. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
14. The procedure for reviewing and amending EHC Plans is set out in legislation and government guidance. The council must review any EHC Plan at least annually. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
15. Where the Council decides to amend the Plan, it must notify the parent of the decision to amend and what the proposed changes are within four weeks of the annual review meeting. It must issue a final amended Plan within eight weeks of the amendment notice.
16. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC Plan. The right of appeal is only engaged when the final amended Plan is issued.

Elective Home education (EHE)

17. Parents have a right to educate their children at home (Section 7, Education Act 1996). This right applies equally where a child has special educational needs (SEN). 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.
18. 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.

The Council’s complaints policy

19. Councils must have a policy to support the effective handling of complaints. The Council’s policy has two stages:
• Stage 1 – informal resolution. A response should be received within 20 working days.
• Stage 2 – formal resolution where the complaint is independently investigated by the Complaints Unit. It should be responded to within 65 working days.

What happened

20. Y started at a secondary school in September 2021. Ms X said Y could not cope and only attended for one day. Y has high levels of anxiety and a diagnosis of ADHD and autism spectrum condition. The school placed Y on a part time timetable. In February 2022 the Council issued Y with a final EHC Plan. This included that:
• in the immediate short-term Y required a bespoke personalised education package carefully matched to Y’s strengths and needs delivered on a 1:1 basis with the flexibility to deliver remotely or in person. It should be reviewed at frequent intervals and be designed with the aim of re-establishing Y’s full time attendance in a suitable education setting.
• A gradual approach to building Y’s attendance and reintegration.
• 25 hours one to one support.
• An adapted environment to support students with autistic spectrum condition. For up to 15 hours a week
• The Plan did not name a school in section I but stated ‘mainstream school: LA maintained’.
21. Ms X emailed the Council and school later that month. She said she felt the school was not right to meet his needs and felt a specialist provision would be better. So, whilst they waited for the Council to consult and identify a suitable school for Y, she decided to home educate. The Council allocated an Elective Home Education (EHE) officer to seek assurances Y was receiving a suitable education and they were satisfied Y was. The Council consulted an independent specialist school, but the school did not consider it could meet Y’s needs. The EHE Officer contacted Ms X’s allocated SEN officer and requested they be included in any EHC Plan review. The SEN officer explained Y’s EHC Plan was not due for review until February 2023. Ms X contacted the SEN officer who advised her to view more schools. The Council consulted another independent school in June 2022. Ms X chased the Council for an update in July and was told the school could not meet Y’s needs. The Council consulted six other schools in August 2022, none of which would accept Y.
22. Ms X complained to the Council about a lack of contact from the SEND Team and that the Council had breached its duty to provide Y with an education.
23. In late October 2022 Ms X told the SEN Officer that she was no longer prepared to home educate Y so that they could access the Council’s Medical Needs and Hospital Education (MNHE) Service. Ms X and Y visited the MNHE Service site but told the Council in December 2022 that the provision was not something Y could manage as Y’s academic levels were more advanced than those attending the provision.
24. The Council responded to Ms X’s complaint in November 2022. It said that as Y was home educated Ms X was responsible for educating Y. It accepted it had not responded to her communications in a timely manner. It said it had consulted with a range of provisions who had all stated they could not meet Y’s needs and had consulted with the MHNE Service to provide Y with education as a move from being home educated. It accepted it had failed to keep Ms X informed of the progress of its consultations with education provisions and had delayed consulting the MHNE Service and of securing educational provision as a change from elective home education.
25. The Council did not review Y’s EHC Plan in February 2023.
26. In March 2023 Ms X provided the SEN officer with further school preferences. The Council consulted the schools but none were able to meet Y’s needs. The SEN officer also discussed the MNHE Service with Ms X and provided a named contact who could support Y with a personalised programme. The MHNES officer emailed Ms X and reiterated they could offer some provision at their site to support Y. They said they would look to create a personalised education plan for Y.
27. The EHE Officer spoke to Ms X in March 2023. Ms X said she was not home educating Y and had told the Council that in October 2022. She said Y would not engage at home and wanted to be in school. They had visited the MHNES site but it was not suitable. Ms X told the SEN Officer that she had spoken with the MHNES officer and felt the alternative provision would not benefit Y.
28. Ms X complained to the Council again in April 2023. She said she was not told she could appeal to have a particular school named in the Plan and had not had any information about Y’s annual review. She was unhappy MHNES was offered again when she considered this would be detrimental to Y as it would only be temporary and by the time Y settled they would need to settle again at another provision. She said she had no contact between October 2022 and March 2023 and was just offered the same MHNES when Y needed a school. She said she was not given an update regarding the consultations which took place in March. She said she would be happy to sit down with Y and an Educational Psychologist again to work on the EHC Plan so it was more reflective of Y’s needs.
29. Ms X did not receive a response to her complaint so contacted us and we asked the Council to respond. The Council responded to Ms X’s complaint in late August 2023 and apologised for not responding to her. It acknowledged Ms X was not advised of the appeal process and that it had not held Y’s review in February 2023. It said it was arranging an annual review with a view to updating Y’s EHC Plan. It accepted the SEND Team had not provided a satisfactory service to Ms X and had failed to communicate with her. It said the team had undergone a restructure and it had recruited additional caseworkers. It noted Ms X’s feelings about MNHES. It said it had discussed the idea of some interim home tuition to see if a package of support could be offered.
30. The Council held Y’s annual review in September 2023 which noted Y’s outcomes had not been met as Y was not accessing education. Following the review it wrote to Ms X to advise it had agreed to amend the EHC Plan. It consulted five further schools which were not able to meet Y’s needs.
31. I have seen no evidence the Council offered any home tuition to Y and Y is currently not accessing any education provision. To date, the Council has yet to finalise Y’s EHC Plan.

Findings

32. When, in February 2022, Ms X told the Council she felt Y needed specialist provision and in early March 2022 that she wanted a specialist school consulted, the Council should have reminded Ms X of her right of appeal. The Council apologised for its failure to do this in its complaint response, but this failure delayed Ms X’s right of appeal. Had it reminded Ms X it is likely Ms X would have appealed as she clearly wanted a specialist setting for Y and the Plan stated a mainstream school.
33. It was Ms X’s decision to provide elective home education and the Council’s EHE officer was satisfied with the quality of provision. Because Ms X told the Council she was educating Y at home the Council was not required to deliver the provisions set out on Y’s EHC Plan.
34. However, Ms X was very clear she was only willing to home educate whilst the Council identified an appropriate school setting for Y. In October 2022 Ms X told the Council she was no longer willing or able to home educate Y. At this stage the Council became responsible again for Y’s EHC Plan. It should have carried out an early review of Y’s EHC Plan or should have taken action to ensure Y was receiving the education set out in the Plan. Its failure to do this was fault.
35. Y’s Plan did not name a school and Ms X believed the Council was actively seeking a suitable provision. The Council did not consult enough schools quickly enough and relied on Ms X to suggest placements. This was fault. It failed to keep sufficient oversight and allowed the situation to drift without ensuring Y received a suitable education.
36. The Council referred Ms X to its MNHE Service. Ms X and Y visited but did not consider it suitable. The Council has explained the service includes home tuition, on line learning and visits to its site. At section F, Y’s Plan stated Y needed a bespoke, personalised education package with the aim of re-establishing Y back into school full-time. The Council considered the MNHE Service was a suitable offer and in line with Y’s Plan. It is for the Council to decide what is a suitable education. However, it is not clear to what extent the Council explained this offer to Ms X or what the consequences were of not accepting it. The Council should have ensured Ms X understood this. In addition, it was clearly a short-term arrangement and by the time Y’s review was due in February 2023 the Council should have done more to ensure Y was receiving a suitable education. The Council was at fault.
37. We expect councils to follow statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. The Council failed to carry out Y’s annual review in February 2023. At this time Ms X had told the Council Y was not being home educated and Y was not accessing any provision. The Council should have carried out a review sooner, in October 2022 when Ms X said she was no longer home educating, and at the latest by February 2023 when the annual review was due. Had it done the review on time, it is likely it would have agreed to amend the Plan as it did so later and therefore a final Plan would have had to have been issued by May 2023. Ms X would then have had a right of appeal if she was not satisfied with the final Plan.
38. In its complaint response the Council accepted it was at fault for failing to communicate effectively with Ms X and for not keeping her updated as to the outcome of its consultations with schools. This caused Ms X distress and frustration. The Council also significantly delayed responding to Ms X’s complaint which added to her distress and frustration.
39. The Council arranged an annual review in September 2023 and issued an intention to amend letter later that month. It should then have issued a final EHC Plan within the following eight weeks. It has still to issue a final EHC Plan for Y some seven months later. This delay is fault. This means there is no up to date Plan with which to consult schools and so has likely delayed finding suitable provision for Y. This has also delayed Ms X’s right of appeal again. The draft amended Plan still states mainstream school at section I when the Council is also consulting specialist and independent schools, and a specialist school is Ms X’s preference.
40. Y has not received any educational provision since October 2022 when Ms X told the Council she would no longer home educate. Section F of the Plan in place from February 2022 set out Y’s need for a gradual reintegration to school and 25 hours of one to one support. Y has therefore missed out on this provision and this has added to Ms X’s distress and frustration. It is acknowledged the Council offered Y some provision through the MHNE Service which Ms X refused. However, the Council has made no progress on reintegrating Y into a school placement which was clearly the purpose of section F, and it is now 22 months since Ms X said she would no longer home educate. This has been compounded by the Council’s failure to carry out review and issue an amended Plan. Had it done the review on time the Council would have issued a final plan and identified a school place by May 2023.
41. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. In deciding on a figure we consider factors such as:
• The severity of the child’s SEN as set out in their EHC Plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Lost or delayed right of appeal to tribunal
42. I have taken account of these factors, Y’s age and SEN and that appropriate provision is likely to remedy some of the loss of education and consider a payment of £1500 per term would be appropriate.
43. Y’s Plan stated Y needed a gradual integration to school and this not occurred. It is acknowledged that Ms X refused the offer of the MHNE service and I have taken that into account, but the Council has allowed the situation to drift. Y’s review should have been held in October 2022 and by February 2023 at the latest, so I have recommended a payment from this date.

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Agreed action

44. Within one month of the final decision, the Council has agreed to:
1. Apologise to Ms X and Y for the distress and frustration caused by the faults identified.
2. Issue Y’s final EHC Plan.
3. Pay Y £6,750 in recognition of the missed provision from February 2023 to July 2024.
4. Pay Ms X £500 to acknowledge the distress and frustration caused to her by the Council’s faults including her delayed right of appeal as it appears likely she would have wanted to appeal.
45. Within two months of the final decision, the Council has agreed to review this case and prepare an action plan setting out how it will ensure:
1. annual reviews are carried out on time and, where it decides to amend an EHC Plan, the final Plan is issued within 12 weeks of an annual review meeting.
2. it retains oversight of children out of school not receiving education.
46. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. I have completed my investigation. There was evidence of fault causing injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman