Summary: Miss F complained the Council failed to provide her son with suitable education and the support set out in his EHC plan. We have ended our investigation. This is because Miss F could have used her right to appeal to the SEND Tribunal, which puts it out of our jurisdiction.

The complaint

1. Miss F complains the Council failed to provide her son, J, with suitable education and the support set out in his EHC plan from July 2023 to March 2024. She says this led to her son having a mental health crisis and caused the family distress.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
3. 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.
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)
5. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), 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)

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How I considered this complaint

7. I spoke to Miss F about her complaint and considered information from the Council.
8. Miss F 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 law and guidance

9. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
10. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's plan, or the fact that no school or other provider is named.
11. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
12. 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. The courts have established that 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)
13. This means that if a child or young person is not attending school or alternative provision, 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 provision.
14. 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.
15. 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).

What happened

16. Miss F’s son, J, has special educational needs. Due to severe anxiety he was unable to attend school full-time and instead was receiving small group tuition off-site. He remained on the roll of a mainstream secondary school (“the School”).
17. The tuition was alternative provision that was intended to be short term to assist reintegration back to school. J had been receiving it for almost two years. J’s EHC plan refers to his severe anxiety in the needs section and the plan to gradually reintegrate back to education at school.
18. In March 2023, the tuition provider raised concerns with the Council that it was no longer meeting J’s needs. This was because he was struggling to engage, he was due to go into KS4 and the provision could not cover the whole curriculum. At a meeting in April it was noted that it was likely the class size would increase which might affect J’s ability to engage.
19. A transition plan was drawn up to end the tuition at the end of July 2023 and move to a new provision. There was a meeting with Miss F on 27 April 2023 to discuss this and the new tutor went to J’s home briefly several times. Miss F was concerned because J needed a lot of time to process changes.
20. Miss F says on the last day of term the tutor advised her not to send J back until she had heard from the School. She contacted the School in September. It said the tuition had ended but a new alternative provision was being put in place.
21. The Council issued a new final EHC plan on 19 September 2023. The plan named the School and said there would be gradual reintegration into a formal education setting. At this point Miss F had a right of appeal to the SEND Tribunal.
22. J was unable to engage with the new provision. Miss F says due to the changes he had a breakdown which resulted in extra mental health support and medication being needed.
23. There was an early annual review in December 2023. Miss F and the mental health service requested J return to the former tutor whilst awaiting a placement at a specialist provider. The Council agreed to refer him.
24. Miss F complained to the Council in January 2024 that J was not receiving any education and the original tuition had not been set up as agreed.
25. The Council replied on 22 March 2024. It accepted that J had been out of education since September and offered Miss F a payment to remedy that which was in line with the Ombudsman’s guidance. It said the School was responsible for ensuring the provision in J’s EHC plan was in place. The Council reinstated the original tutor for J in March 2024.

My findings

26. I intend to end my investigation. This is because when the EHC plan was issued in September 2023, it would have been reasonable for Miss F to have used her right of appeal to the SEND Tribunal if she was dissatisfied with the provision or placement set out in the plan. Only the SEND Tribunal can instruct councils to amend final EHC plans and determine the best provision for J.
27. As set out in paragraph 4, the Ombudsman cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal. Miss F is fundamentally complaining about the education provision for J and the question of how he will receive that appears interwoven with the content of the EHC plan, as that envisages both alternative provision and a transition period. Miss F could have raised how J could be provided with education out of school and / or integrated back into school, as part of an appeal. My view therefore is that Miss F’s complaint is out of our jurisdiction.

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Final decision

28. I have discontinued our investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman