Summary: Ms Y complained the Council decided Placement H was a suitable setting for her child, X, despite concerns from Ms Y and Placement H. Ms Y said this led to X losing education and therapy provision. Ms Y also complained the Council delayed agreeing to her proposed education arrangements for X and delayed securing therapy provision. We have found the Council at fault for failing to secure the therapy provision in X’s Education, Health and Care Plan for the first term of the 2023/24 academic year. We have also found the Council at fault for some of its communication with Ms Y and for delay in responding to X’s emergency review. We have made recommendations to remedy the injustice this caused. Parts of Ms Y’s complaint concerns matters which were part of, connected to, or could have been part of, an appeal to the SEND Tribunal. We cannot consider these matters.

The complaint

1. Ms Y complains the Council did not tell Placement H she had withdrawn her child, X, from attending. Ms Y said the Council decided Placement H was suitable for X between January and June 2023, even though Placement H said it was not. Ms Y said the Council could have agreed to her proposed education arrangements sooner than it did.
2. Ms Y said X lost education and therapy provision between January and June 2023 because of the Council’s decisions. She said this affected X’s wellbeing and development, causing avoidable distress. She also said the Council’s delay in accepting her proposals meant she could not implement new arrangements sooner.
3. Ms Y also said the Council did not put therapy provision back in place until January 2024, despite it being in X’s Education, Health and Care 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 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)
5. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(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. 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)

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How I considered this complaint

8. I discussed the complaint with Ms Y and considered information she provided.
9. I considered information the Council provided about the complaint.
10. Both Ms Y and the Council were able to comment on a draft version of this decision. I considered any comments I received before making a final decision.
11. 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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Relevant legislation, guidance and policy

Education, Health and Care Plans

12. 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.
13. 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 
14. 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. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
15. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
16. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.

Education otherwise than at school

17. If Councils decide it is necessary for child’s SEN provision to be delivered otherwise than in a school (EOTAS) they may arrange for this to happen only if they are satisfied it would be inappropriate for the provision to be made in a school. (Children and Families Act 2014 S.61)

Appeal rights

18. There is a right of appeal to the Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.
19. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
20. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
21. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
22. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).

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What I found

23. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
24. X is a young person with an EHC Plan, who is beyond the age of compulsory school education. At the time of the events complained of, X attended a specialist education setting. I refer to the setting as Placement H in this statement.
25. In November 2022, Placement H held a scheduled annual review of X’s EHC Plan. The Council said it received the review paperwork from Placement H in December 2022.
26. In late December 2022, Ms Y emailed the Council about an incident where X arrived home from Placement H with injuries. Ms Y said she would be withdrawing X from Placement H, as she had concerns about X’s wellbeing while attending. The Council said it would record X as not attending Placement H from that date onwards. The Council said it would forward Ms Y’s concerns to its commissioning team, so it could challenge the quality of provision given to X.
27. X did not attend Placement H from January 2023. Ms Y sought an emergency review of X’s EHC Plan. The emergency review took place on 19 January 2023.
28. The Council responded to the first review held in November 2022. The Council said it would make no changes to X’s EHC Plan, as none had been sought in that review.
29. On 2 February, Provider H told the Council it could no longer meet X’s needs.
30. The Council said it received the emergency review paperwork in March 2023. The Council also received a request for a change in X’s placement. The Council said it could not decide on suitable provision until its education and social care services assessed which parts of a proposed EOTAS package would need education or care service contributions. The Council said Placement H would remain X’s educational setting, until the Council decided if it should change the provision in X’s EHC Plan.
31. The Council said it wrote to Ms Y to discuss a personal budget for an EOTAS package. The Council said it felt X’s provision needed to consist of education and social care services working together. It asked for Ms Y’s input. It said Placement H would remain named on the EHC Plan until it decided what X’s provision should be. The Council said Ms Y did not agree with its proposal.
32. The Council decided not to change the placement named in X’s EHC Plan. It issued a final amended EHC Plan still naming Placement H for the rest of the academic year, intending to name special provision from September 2023. Ms Y appealed against this decision to the SEND Tribunal.
33. In April 2023, the Council said it contacted Ms Y’s proposed education provider. It said it did not receive a response. The Council said Ms Y then asked it to contact her directly with any queries, rather than contacting the proposed provider, so she could avoid incurring costs.
34. Ms Y complained to the Council:
1. Ms Y said the Council should have responded within four weeks of the emergency review and provide an update on a plan for X, but this had not happened.
2. Ms Y said the Council had failed to follow statutory guidance. Ms Y said they had sought an EOTAS package because provision in any kind of setting was unsuitable.
3. Ms Y said X had received no interim provision in the meantime.
35. In May 2023, the Council responded to Ms Y’s complaint:
1. The Council agreed it had failed to properly register or respond to the emergency review held in January. The Council accepted it issued its decision after more than four weeks, breaching statutory timescales. The Council said it understood its duties. It said all authorities were facing challenges in this area.
2. The Council did not agree it had failed to tell Placement H that Ms Y intended to withdraw X. The Council apologised for its communication in December 2022 and said it was misleading and confusing in tone. It recognised the impact of this on the communication between Ms Y and the Council’s SEND service. Despite this, the Council said it was not for the Council to tell Placement H about Ms Y’s decision to withdraw X. The Council said it had not agreed X should withdraw from Placement H. It said at the time of the emergency review, Placement H believed it could meet X’s needs.
3. The Council partially agreed it had provided misleading or conflicting information. It said there was no intent to mislead Ms Y or abuse the correct procedures, but said X's circumstances were complex.
4. The Council partially agreed it had failed to ensure X received provision. The Council said where a parent withdrew a child from a setting, there was no automatic right to an EOTAS package by default, if the Council believed the placement could meet the young person’s needs. The Council said any decision like this would be subject to an assessment. It said Placement H only told the Council it could not meet X’s needs in February 2023.
5. The Council said it could have done more to challenge the quality of provision at Placement H from January 2023. However, it said it could not end a placement without knowing what would replace it.
6. On Ms Y’s proposed plans, the Council said it needed to be able to contact possible providers directly. It said it could not arrange an EOTAS package until it had relevant details. It said it wanted to work with Ms Y to explore a suitable package. It also identified learning and service improvements.
36. The Council held a meeting in June 2023 to discuss the proposed EOTAS package. Ms Y said the Council agreed to the proposals shortly after the meeting. Ms Y escalated her complaint.
37. The Council issued a draft amended EHC Plan on 16 June 2023. The Council removed Placement H from Section I. It also detailed an EOTAS package in Section F. The Council issued the final amended EHC Plan on 26 June 2023. Ms Y said the new amended final plan had both SALT and OT in the same quantities as before. The Council would provide these therapies directly, rather than Placement H securing these on the Council’s behalf.
38. The Council issued its final response to Ms Y’s complaint:
1. The Council changed its finding regarding a failure to tell Placement H about X’s withdrawal, now partially agreeing with Ms Y. It said as Placement H remained the setting named in the plan, the Council reasonably expected it to consider how it could secure X’s provision. The Council said this did not happen for many reasons. It said this included a lack of parental engagement from Ms Y, and inflexibility from Placement H. The Council said it could have done more to reinforce Placement H’s duty of care and been clearer about its expectations.
2. The Council made no other changes to its findings. It said matters had since moved on and a direct payment agreement was now in place with the new providers.
39. Ms Y withdrew her appeal to the SEND Tribunal. The SEND Tribunal agreed to the withdrawal and told the Council of this on 18 July 2023.
40. Ms Y said Council-commissioned therapists assessed X in October 2023, but did not begin delivering SALT and OT until January 2024.

Analysis

January to July 2023

41. The Council has accepted it delayed responding to X’s emergency review. This delay is fault. The Council’s delay means Ms Y did not receive her right of appeal against the content of X’s EHC Plan at the correct time. However, I believe any injustice this caused to X was mitigated by the appeal being withdrawn.
42. The Council’s delay caused avoidable frustration for Ms Y. The Council apologised for this delay. This apology provides a partial remedy for the injustice caused. I propose to recommend the Council act to remedy the unaddressed injustice.
43. Paragraphs 18 to 22 set out the Ombudsman’s jurisdiction when a right of appeal exists. I have considered the Ombudsman’s jurisdiction to investigate Ms Y’s complaint.
44. Following the emergency review, the Council decided to keep Placement H named as the setting in X’s EHC Plan. The Council’s decision to continue to name Placement H came with a right of appeal, which Ms Y exercised. Because of the disagreement over the suitability of the setting, X did not attend Placement H. X did not therefore receive the education or therapy provision specified in his EHC Plan, which Placement H provided on the Council’s behalf.
45. This loss of provision was a consequence of the disagreement over the setting named in X’s EHC Plan. This means any loss of provision in this time is part of, or connected to, matters the SEND Tribunal could have considered. The restrictions set out in paragraphs 18 to 22 apply. The Ombudsman cannot investigate Ms Y’s complaint about a lack of provision from March 2023 to July 2023.
46. The Ombudsman has jurisdiction to investigate any matters before an appeal right arises. Ms Y received her right of appeal in March 2023. This means the Ombudsman could consider matters occurring in January and February 2023.
47. However, in practice, the emergency review was taking place at this time. I cannot separate Ms Y’s complaint, about a loss of provision in January and February 2023, from the Council’s decision to continue to name Placement H in X’s EHC Plan. I cannot investigate that decision, which Ms Y appealed to the SEND Tribunal. I therefore believe I could not achieve anything by investigating this period alone and it would be disproportionate to do so.

Therapy provision from September 2023 onwards

48. Ms Y withdrew her appeal in July 2023. The SEND Tribunal confirmed this to the Council on 18 July 2023. The Ombudsman can consider matters occurring from this point onwards.
49. The Council issued X’s final amended EHC Plan in June 2023. The Council should have secured the education and therapy provision in the plan from September 2023, the beginning of the new academic year. The Council did not arrange for therapists to assess X until October 2023. The OT and SALT named in X’s EHC Plan did not begin until January 2024.
50. I have found the Council at fault for the delay in arranging an assessment. I have also found the Council at fault for the overall delay in therapies starting. These faults caused X an injustice. The Council’s delay in arranging the assessment meant there was no prospect of SALT and OT beginning at the correct time. X went a full academic term without benefitting from the SALT and OT specified in his EHC Plan. X’s EHC Plan makes clear that SALT and OT programmes devised by therapists are embedded into his education provision. Any lack of therapy provision would therefore have a significant impact on the wider delivery of education provision, affecting X’s educational attainment.
51. I have also found the Council at fault for its communication with Ms Y during this period. Following X’s assessment, it took the Council two months to confirm when therapies would begin, despite Ms Y seeking regular updates. This caused Ms Y avoidable frustration and uncertainty.

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Agreed action

52. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Ms Y and X for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Review its commissioning arrangements to ensure these can meet timescales for needs assessments and provision of SALT and OT, once an EHC Plan is finalised.
3. Pay Ms Y £200 in recognition of the avoidable frustration and uncertainty she experienced because of faults in the Council’s communication, and the delay in responding to X’s emergency review.
4. Pay a further £1100 in recognition of the special educational provision X missed for one term in the 2023/24 academic year. I have considered the Ombudsman’s Guidance on Remedies when recommending this figure. In particular, I have considered:
1. X is not in compulsory education, or in a key transition year, and did receive some education provision. However, X is a vulnerable young person, with an EHC Plan. X’s EHC Plan makes clear that SALT and OT are included in Section F as special education provision, because of how interlinked the therapies are with delivery of education. The lack of therapy provision therefore had a wider impact on X’s educational attainment for a full term.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused. Parts of Ms Y’s complaint are about matters that were connected to, or could have been part of, an appeal to the SEND Tribunal. I cannot investigate these parts of Ms Y’s complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman