Summary: Miss X complained the Council delayed in identifying her son M’s special educational needs, in issuing a final education, health and care plan and in identifying an appropriate school for him. Miss X also complained the Council did not properly consider her complaints about the matters. The Council failed to provide the special educational provision M needed for eight months. The Council agreed to apologise to M and Miss X and pay M £1,500 to recognise the injustice caused to him.

The complaint

1. Miss X complained the Council delayed in identifying her son M’s special educational needs, in issuing a final education, health and care plan and in identifying an appropriate school for him. Miss X also complained the Council did not properly consider her complaints about the matters. Miss X states that M has missed two years of education and it has impacted Miss X and M’s mental health.

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What I have and have not investigated

2. Some of the events Miss X complained about happened in 2021. 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).
3. I have not investigated Miss X’s complaint about the delay in identifying M’s needs and issuing a final education, health and care plan in May 2021. This is a late complaint, and it was reasonable for Miss X to complain to us much sooner.
4. After the Council issued the final education, health and care plan Miss X appealed the contents of it to the Tribunal in July 2021. The Tribunal ruled in February 2022. I have investigated what happened between February and November 2022.

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The Ombudsman’s role and powers

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. 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 this decision with Ofsted.

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How I considered this complaint

8. I read the documents Miss X provided and discussed the complaint with her on the telephone.
9. I considered the documents the Council sent in response to my enquiries.
10. I considered our Guidance on Remedies.
11. Miss 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

Relevant legislation

Education, Health and Care Plan

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 which include:

• Section B: The child or young person’s 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 school. 

13. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Children and Families Act 2014, Section 42).

The Tribunal

14. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs.
15. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Where the Tribunal orders a council to amend an EHC plan, the council shall amend the EHC plan within five weeks of the order being made. (Special Educational Needs and Disability Regulations 2014) 
16. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
17. The way the council conducts itself within the Tribunal is a matter for the Tribunal. It makes case management directions, has powers to deal with non-compliance and can make costs orders. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008) 

Education

18. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

What happened

19. This section sets out the key events in this case and is not intended to be a detailed chronology.
20. M is a secondary school student. He has autism and ADHD and needs support to meet his special educational needs. In 2021 M had a place at school A.
21. The Council issued a final EHC plan for M in May 2021. It said M should attend a mainstream school with an alternative package of education. Miss X’s right to appeal to the SEND Tribunal began when the final EHC plan was issued.
22. Miss X appealed to the Tribunal about section B, F and I of the EHC plan in July 2021. Miss X wanted M to attend a residential special school.
23. The Tribunal heard the appeal in February 2022 and ordered the Council to amend B, E and F of the EHC plan to reflect M’s needs and the specialist educational provision he needed. The Tribunal ordered the Council to specify in section I that M needed a residential special school.
24. Miss X complained to the Council in February 2022 about the conduct of two Council Officers around the information they shared during the SEND tribunal.
25. The Council issued a final amended EHC plan for M in March 2022. It set out the specified provision which went beyond the academic day and included:
• 30 minutes a week direct speech and language therapy (SALT)
• 10 minutes a day review of progress and targets with SALT
• 30 minutes with a staff member trained by SALT around building friendships
• 20 minutes a day for both functional literacy and numeracy on a one-to-one basis
• 30 minutes a week group work on executive function
• A programme of occupational therapy (OT) for 18 hours per year
• 30 minutes a day to cook healthy meals
• 30 minutes a day gym-based programme
26. Section I of the EHC plan stated the type of school was ‘a specialist setting for students with social, emotional and mental health difficulties until a permanent school placement can be found inline with the agreement made at tribunal for a special residential school’. The plan named school B while the Council consulted for a specialist setting.
27. The Council consulted 34 schools between February and July 2022. Three of those schools it consulted twice. Six schools did not respond. All other schools declined due to not having space or not being able to meet M’s needs. In May 2022 school C, a special residential school, agreed to assess M for a placement.
28. Miss X’s solicitor wrote to the Council in April 2022. They said the Council had failed to provide the special educational provision set out in M’s EHC plan.
29. The Council responded and agreed it had not yet found a residential special school for M to attend. It said it was trying to provide an interim provision in school B but it may not meet all of M’s needs.
30. Miss X’s solicitor wrote to the Council again in May 2022 about the lack of progress in M’s situation and included the complaint Miss X made in February 2022 about the Council Officers’ conduct at the Tribunal.
31. The Council responded to Miss X and said it could not consider the complaint about the officers through the complaint procedure as it was now subject to legal proceedings with Miss X’s solicitor.
32. Miss X told the Council she wanted to bring the complaint about the officers’ conduct to us for consideration. The Council said it could not consider matters subject to legal proceedings, or considered during a tribunal process through its complaint process. It said it would be reasonable for Miss X to seek advice from us. Miss X brought this matter to us in November 2022.
33. The Council responded to Miss X’s solicitor on the matter of M’s education and said:
• it had arranged interim provision at school B but this became unsuitable before the placement could start;
• it had been exploring an alternative package of education while it continued to look for a residential placement;
• it had commissioned a tutoring service for 10 hours a week and the service was seeking a tutor;
• it had consulted with 20 providers to find a SALT and OT; and
• it set out all the schools it had consulted with so far.
34. School C assessed M in June 2022 and offered a place for the following academic year, on the basis that M would go back an academic year.
35. The Council issued a further final amended EHC plan for M in October 2022. In Section I it said M should attend a specialist setting for students with social, emotional and mental health difficulties. It named school C.
36. M began attending school C in November 2022. Miss X brought her complaint to us.

Education and provision from March 2022

37. M was on role at school A but was not attending. The Council agreed to fund alternative provision at school B while it found and arranged a residential special school placement for M from March 2022. The Council recognised that school B could not provide all elements of M’s EHC plan. It also made a referral to an alternative provider to support M to re-engage with education.
38. Due to a problem with transport arrangements, and later with potential risks to M’s safety he did not attend school B. The Council decided it was no longer an appropriate placement and withdrew the offer in May 2022.
39. The Council said it tried to meet with Miss X in April and May 2022 to discuss appropriate interim provision for M, but was not able to.
40. The alternative provider began providing 10 hours tuition a week in July until November 2022.

My findings

Education and provision

41. Miss X complained that M had lost two years of education up until November 2022. I have only considered matters from May 2021 onwards for the reasons set out in paragraphs two to four.
42. The education that M received between May 2021 and February 2022 is inextricably linked to the matters that were considered by the tribunal, namely the type of provision M required and the type of school he should attend. Therefore, I cannot and have not investigated the education M received from May 2021 until February 2022. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
43. The tribunal specified the provision and type of school that M should attend in February 2022. The Council issued an EHC plan in March 2022 and named school B as an interim measure, which it knew could not provide all of the provision in M’s EHC plan. However, M could not attend that school as the Council decided it was no longer suitable and removed the offer. The Council also stated it contacted several alternative providers, including SALTs and OTs for interim provision. None of these were successful. The Council did not provide a suitable education for M for 20 academic weeks from March until November 2022, which was fault (Education Act 1996, section 19).
44. The Council has a duty to secure the named special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). M did not receive any specialist educational provision for 20 academic weeks between March, when it should have been in place, and November 2022, other than 10 hours of tuition a week from July to November 2022. That was fault.
45. M’s EHC plan sets out that he had significant needs that could only be met through a residential special school. Therefore, the faults identified in the two paragraphs above had a significant impact on M’s wellbeing, education and personal development. This also caused Miss X frustration and distress.
46. The Council consulted 34 schools over five months and only one could offer a place. The Council consulted with some schools more than once in that period. There is no evidence of fault in how the Council consulted schools.
47. M started at school C a year below his age and will not be educated with his age equivalent peers which has caused him distress. However, M can now receive the education and specialist provision he missed.

Complaint

48. Miss X complained about the conduct of two Council Officers during the tribunal. Miss X’s solicitor also wrote to the Council about the same matter. The Council treated this letter as the start of legal action. It told Miss X it could not consider it through the complaint process at the same time as legal proceedings and could not consider matters that had occurred during the tribunal. The Council signposted Miss X to us. There was no fault in how the Council responded to this complaint.
49. I have not investigated this element of Miss X’s complaint any further as we cannot investigate what happened at the Tribunal.

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Agreed action

50. Within one month the Council will:
• write to Miss X and M and apologise for the distress caused to them by the Council’s failure to provide an appropriate education and the special educational provision M was entitled to for 20 academic weeks;
• pay Miss X a symbolic amount of £1,500 to recognise the distress and impact on M’s wellbeing and personal development caused by the lack of education and provision and having to move back an academic year, Miss X should use this for M’s wellbeing as she sees fit; and
• pay Miss X £200 to recognise the frustration and distress caused to her.
51. The Council will provide us with evidence it has complied with the above actions.

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Final decision

52. I have completed my investigation. I found fault causing injustice and the Council has agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman