Summary: Ms X complained the Council failed to follow statutory timescales during the Education, Health and Care (EHC) needs assessment for her daughter (D) and failed to provide alternative education. The Council is at fault for delay in assessing D and drafting a plan. As Ms X has appealed the final plan to the Tribunal, the Ombudsman cannot consider anything linked to the appeal.

The complaint

1. Ms X complained the Council failed to follow statutory timescales during the Education, Health and Care (EHC) needs assessment for her daughter (D) and failed to provide alternative education. Ms X says D has missed out on education and feels isolated. It has caused Ms X emotional and financial distress. Ms X would like the Council to provide D alternative education.

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The Ombudsman’s role and powers

2. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
3. We cannot investigate a complaint if someone has appealed to a Tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a Tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
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. 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)

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What I have and have not investigated

6. As Ms X has appealed the Final EHC Plan to the Tribunal, the Ombudsman cannot investigate anything which is part of the appeal or connected to it. I have not investigated the Final EHC Plan, or the request for alternative education.

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How I considered this complaint

7. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to enquiries.
• The Children and Families Act 2014, the Special Educational Needs and Disability Regulations 2014, the Education Act 1996 and the Special Educational Needs and Disability Code of Practice, January 2015.
8. Ms 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

9. The courts 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)
10. 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.
11. The period we cannot investigate starts from the date the appealable decision is made and given to the parents. If the parent 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.
12. 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 provision.

The Council’s corporate complaints procedure

13. The Council’s corporate complaints procedure is available online. It says where a complaint is not resolved within three working days, an acknowledgement will be sent including the expected date for a response. A full response should be made as soon as possible and within 28 calendar days.

What happened

14. I have summarised below the key events; this is not intended to be a detailed account.
15. D is primary school age and lives at home with her family. Ms X asked the Council to do an Education and Health Care (EHC) Needs Assessment in June 2022. The Council agreed in August 2022.
16. At the beginning of November, the Council told Ms X it was not going to issue an EHC plan for D. Ms X appealed the Tribunal.
17. In April 2023, the Council conceded the appeal and agreed to issue a draft EHC plan. The Council issued the plan in late May.
18. Ms X asked the Council to amend the plan. The Council issued a new version in July. Ms X emailed the Council and said it had not made the amendments she asked for. The Council responded to Ms X in November.
19. At the beginning of September, Ms X asked the Council to provide alternative education for D as she was not getting access to full time education. The Council did not respond to Ms X.
20. In conversation with me, Ms X said the school named in the plan cannot meet D’s needs. It does not have the space or budget to cater for her. Ms said the head teacher agrees it is not the right educational setting for D. Ms X said on the occasions D attended school, she was physically sick and emotionally traumatised. Ms X said she will not put D through this and she no longer attends school. Ms X pays for educational activities for D such as forest school, swimming, and horse riding.
21. The Council issued the final plan in late November 2023.
22. Ms X appealed the final plan. The hearing is due to take place in January 2025.

Ms X’s complaint

23. Ms X complained to the Council in September 2023 about the delays and inadequacies of the EHC needs assessment and planning. She provided a brief timeline of the case which referred to the Councils failure to respond to her request for alternative education under section 19.
24. The Council responded in the middle of November and apologised for not responding within the timescales published within its complaint’s procedure. It offered Ms X £500 for the distress, time and trouble caused by the delay in responding to the complaint.
25. In its complaint response, the Council also accepted the communication with the special educational needs and disabilities team was not up to standard, the timeliness of the assessment was not good enough and the decision for D was delayed. It apologised to Ms X. It did not comment on Ms X’s request for alternative education.
26. The Council explained it has restructured and recruited to the special educational needs and disabilities team and introduced a new system to track reports. It had also provided free advice to schools to help improve early intervention.
27. Ms X complained to the Ombudsman in November. She said the Council accepted its failure to adhere to statutory timescales but failed to provide D with alternative education.

Analysis

28. As Ms X has appealed the final plan to the Tribunal, the Ombudsman cannot investigate this, or anything linked to the appeal. This includes D’s absence at school and the lack of alternative provision provided as it is linked to the appeal.
29. The Council delayed in responding to Ms X complaint, it did not meet the timeframes as set out in its corporate complaint’s procedure. This is fault. It accepted this in its complaint response.
30. The Council delayed assessing D and issuing her with an EHC Plan. The Council missed the statutory deadlines, this is fault. The Council admitted this in its complaint response.

Injustice

31. I have considered the impact the Council’s faults had on D and Ms X.
32. The Council’s delay in assessing and drafting an EHC Plan for D has caused D and Ms X uncertainty, made worse by the Councils delay in the dealing with the complaint. This is their injustice.

Remedies

33. The Council has already apologised to Ms X for not responding to her complaint within the published timeframe. It was right to have done so. It also offered a financial remedy of £500 for the distress caused and the time and trouble in bringing the complaint. This is in line with the Ombudsman’s guidance on remedies. I do not need to make further recommendations.
34. The Council has already apologised for the delay assessing D and issuing her EHC Plan. It was right to do so. I have considered the Ombudsman’s guidance on remedies and consider it is also suitable to offer a financial remedy for the uncertainty caused by this delay.
35. The Council has made several service improvements. It is right to have done so. I do not consider I need to make any further recommendations.

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Agreed action

36. Within four weeks of my final decision, the Council will:
• Pay Ms X £300 for the uncertainty caused by the Council’s delay in assessing and issuing an EHC Plan for D.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I have completed my investigation. The Council is at fault for delay in assessing and drafting an EHC Plan for D, this has caused Ms X uncertainty.
39. Ms X has appealed the final EHCP to the Tribunal which prevents the Ombudsman from looking into this and anything which is linked to it, such as alternative education.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman