Summary: Mrs X complained about the Council’s handling of her child’s Education, Health and Care Plan, it’s lack of communication, and not putting in place provision, or tuition it agreed to, for her child. We found the Council at fault. The Council has agreed to our recommendations to remedy the injustice caused.

The complaint

1. Mrs X says her child has been out of school since March 2022. She complains about the Council’s handling of their Education, Health and Care (“EHC”) Plan and their non-attendance at school since June 2022. Specifically:
1. An annual review took place in June 2022 where it agreed Mrs X could home educate her child, but the Council did not issue a final amended plan;
2. She did not hear back from the Council until October 2023 as it believed her child was missing education. It then issued a final amended EHC plan; and
3. Shortly before this, the Council decided her child was eligible for 10 hours tuition per week, but it is still not in place.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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)
4. 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)
5. 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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What I have and have not investigated

6. I am not investigating part a) of Mrs X’s complaint about the annual review from June 2022. As per Paragraph 3, this part is late, and I consider Mrs X could have complained specifically about this sooner. I have made reference to these events for relevant background context which led to Mrs X’s complaint to us.

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How I considered this complaint

7. I wrote to Mrs X. She responded and I considered her views.
8. I made enquiries of the Council and considered its written responses and information it provided.
9. Mrs X and the Council 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

Law and administrative background

Education, Health and Care Plans (“EHC Plans”)

10. 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. 
11. We accept it is not practical for councils to keep a ‘watching brief’ about special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

12. 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. A review meeting must take place. The process is only complete when the council issues a decision about the review.

Elective Home Education (“EHE”)

13. Parents have a right to educate their children at home (Section 7, Education Act 1996). In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
14. Councils do not have a legal duty to secure special educational provision in a child’s EHC Plan if they are being home educated and it is satisfied that the parent’s arrangements are suitable.
15. The Council’s website has a “guide to elective home education”. It says it will make contact with parents to discuss their approach and ask for evidence, it would visit to see progress with periodic contact at the discretion of parents to offer support if needed, and it had a duty to act if it appeared home educated children were not receiving suitable education.

Background

16. Mrs X’s child (“Y”) has complex special educational needs (“SEN”), with an EHC Plan for many years. Y previously had “the School” named on their Plan.
17. In June 2022, a review meeting of Y’s EHC Plan took place. Mrs X wanted to home educate Y. The Council’s notes show Mrs X said how she would deliver provision as set out in Y’s EHC Plan and what resources she intended to use. She was made aware she would be responsible for making her own arrangements for Speech and Language Therapy (“SALT”) or Occupational Therapy (“OT”) for Y.
18. The Council agreed Mrs X’s request. It did not issue a final amended EHC Plan.

What happened – summary of key relevant events

19. In October 2023, the Council contacted Mrs X. It mentioned safeguarding concerns as it thought Y was missing education. It spoke to the School who did not know where Y was placed. Mrs X told the Council she had been home educating Y.
20. Later that month, after a meeting, the Council agreed 10 hours a week home tuition for Y for the rest of the academic year. It would look for special school placements for Y to start in September 2024. It then issued a final EHC Plan. This included provision for OT and SALT in Section F.
21. In early November 2023, Mrs X made a formal complaint to the Council. She said Y’s education had been neglected for a significant period of time. Mrs X did not receive a response.
22. In late January 2024, Mrs X made a second complaint to the Council. It was a follow on from her first complaint. She said the agreed tuition was still not in place for Y.
23. Mrs X complained to us. We contacted the Council, and it confirmed it had not responded to her complaint.
24. In late March 2024, the Council responded at Stage One. It apologised for the delay. It had consulted with potential tuition providers. Mrs X had declined one as unsuitable for Y. It would continue its search. Mrs X escalated her complaint as it did not address the issues in her first complaint.
25. In April 2024, the Council responded at Stage Two. It apologised for the delays with Y’s EHC Plan and review since 2022. It said at the time, it was handling a significant increase for demand in its SEND service which impacted on its ability to work within required timescales.
26. We then accepted Mrs X’s complaint to us. The Council issued a final EHC Plan for Y in March 2024, naming a placement for September 2024.
27. In response to questions I asked of Mrs X, she said she did not hear from the Council from June 2022, until October 2023. She also did not make contact with it during that time due to historic issues with the Council over previous years (not part of this investigation).
28. In response to my enquiries, the Council accepted it did not act in line with guidance or its own processes with Y’s case, with several lapses and flaws. It would agree to a suitable remedy to recognise the distress and frustration caused with its delays and errors. I welcome the Council’s acceptance here.
29. I asked the Council if it had provided SALT or OT since October 2023. It said it had no evidence of this being offered which was an oversight and apologised.

Analysis

Annual reviews: 2022 and 2023

30. As stated in Paragraph 6, I am not investigating the annual review from June 2022 (which the Council did not formally complete). However, Y’s previous EHC Plan before this was dated February 2022, so I consider the Council should have carried out Y’s next review by February 2023. The Council failed to do so. This is fault. An EHC Plan does not stop because a child is being home educated. The Council is required to carry out a review annually to assure itself the provision continues to be appropriate and that a child’s SEN continues to be met.
31. I cannot say what would have happened if the Council had done it at the point it should have. But there is uncertainty about what the outcome may have been had the Council properly reviewed and if it decided any changes needed to be made for Y. This uncertainty is injustice to Mrs X and Y. This also denied Mrs X a statutory right of appeal.

Elective Home Education review

32. Additionally, the Council failed to retain some oversight on the education Y was receiving in line with its guidance about home education (Paragraph 15). On balance, I note Mrs X did not contact the Council herself to say if she was experiencing any difficulties or to ask for any support. But I still consider there was some avoidable frustration to Mrs X and Y with its poor communication and poor record keeping here. This is fault. There is also uncertainty with possible missed opportunities for the Council to satisfy itself whether Y was receiving a suitable education and if it could have done something sooner which may have made a difference.

Home tuition, OT and SALT

33. Home tuition - After agreeing to put tuition in place for Y since October 2023, Mrs X said the Council had not done this. I can see efforts by the Council to try and arrange this and being met with some difficulties. However, the Council has also accepted some casework drift with this. This is fault. This has caused injustice to Y with frustration and disappointment. Y has missed out on education provision as agreed by the Council between October 2023 and July 2024. This has significantly impacted on Y’s wellbeing.
34. OT and SALT - In October 2023, the Council had re-established contact with Mrs X and appeared to accept responsibility back for Y’s EHC Plan and his education (including the tuition above). It issued an amended EHC plan to remove the School but Section F included OT and SALT provision. It had a legal duty to provide this from that point. It did not. This is fault. The Council accepted this was an oversight and apologised for this. This caused injustice to Y as they missed out on SALT and OT provision for their SEN needs.

Complaints handling

35. It took the Council around four and a half months to issue a Stage One response to Mrs X’s formal complaint. This is notably outside the Council’s policy of 20 working days. It also appeared to be prompted by our involvement to do so. This is fault and caused Mrs X avoidable frustration.

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Agreed action

36. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
37. Within one month of the final decision:
• Apologise to Mrs X and Y (in line with our guidance on making an effective apology) for the injustice caused by the above faults;
• Pay Mrs X £250 as a symbolic payment to recognise her uncertainty and frustration; and
• Pay Mrs X £4,800 as a symbolic payment to recognise the impact of missed education, SALT and OT for Y between October 2023 and July 2024. This could be used for Y’s educational benefit.
38. The Council should provide us with evidence it has complied with the above actions.
39. Over the last few years, we have issued multiple decisions highlighting failings by the Council’s SEN Service. We have issued decisions where the Council agreed the recommendations to improve similar faults relevant to this case which we are continuing to monitor. For this reason, I have not made further service improvements.

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Final decision

40. I have upheld the complaint. I found fault with the Council which caused injustice to Mrs X and Y. The Council has agreed with my recommendations to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman