Summary: Mrs X complains about the way the Council dealt with her daughter, Y’s post-16 education placement causing distress. We cannot investigate Mrs X’s complaints about the way the Council dealt with Y’s post-16 education placement. This is because Mrs X has appealed to the SEND Tribunal about her concerns and the law prevents the Ombudsman for investigating such matters. So, we are ending our investigation.

The complaint

1. Ms X complains for her daughter Y the Council delayed ensuring Y had post 16 education in place by the end of March 2023. Ms X says this caused Y and the family stress during her exam time in Summer 2023 and delayed putting school transport in place resulting in further uncertainty.
2. Ms X also complains about the suitability of Y’s post 16 placement and lack of options to study A levels causing distress to Y and impact onto her future educational plans.

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The Ombudsman’s role and powers

3. The Local Government Act 1974, as amended, sets out our powers but also imposes restrictions on what we can investigate.
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. 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)
6. 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.
7. 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)
8. 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.
9. 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)

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How I considered this complaint

10. I considered the information Ms X provided with her complaint. I considered information from the Council and the supporting documents it provided along with the relevant law and guidance.
11. Ms X and the organisation 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

Education health and care plan

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. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
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. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.

Appeal rights

16. 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.

Events leading to the complaint

17. What follows is a brief chronology of key events. It does not contain all the information I reviewed during my investigation.
18. Y has been diagnosed with ASD and has other special educational needs. Y has an EHC Plan and attended a specialist secondary school. The Council carried out an annual review of Y’s EHC Plan in Autumn 2022 to look at Y’s post 16 education from September 2023.
19. In March 2023 Ms X found the Council had failed to consult with her the post 16 placement she wished Y to attend after the annual review in 2022. The Council then consulted but the placement said it could not meet Y’s needs. Ms X says this meant in March 2023 there was no post 16 placement in place for Y. Ms X and the Council consulted 20 placements and only one, a specialist independent placement, said it could meet Y’s needs.
20. The Council issued an EHC Plan on 31 March 2023. The Council named Y’s placement in Section I as her current school until July 2023 and then a ‘general further education college’ as a type of school from September 2023. Ms X appealed to the SEND Tribunal in July 2023 about section I of the EHC Plan as the Council did not name a setting for Y.
21. The Council arranged for the post 16 panel to consider the offer of a place at the specialist college for September 2023 on 22 August 2023.

Ms X’s Stage 1 complaint to the Council

22. Ms X complained:
• The Council had failed to consult with her initial post 16 choice after Y’s Annual Review in Autumn 2022. Mrs X was unaware of this until March 2023 and told the placement could not meet Y’s needs.
• The Post 16 Panel did not consider Y’s case on 8 August 2023 as scheduled because they closed the evidence deadline early.
• Y’s case was due to go back to Panel on 22 August 2023, but there was no guarantee the panel would make a decision.
• She understood the panels ran at a reduced capacity during August and only meet fortnightly.
• The Council’s SEN team had caused Y and the family distress and injustice. Ms X said as there was no post 16 placement for Y in March 2023 it caused her uncertainty and stress while taking her exams.
23. The Council responded to Ms X’s complaint. It accepted it failed to consult with her parental preference for Y after the annual review in Autumn 2022. It acknowledged a delay and in Ms X receiving an update from case officer about the consultation response in March 2023. The Council apologised for the delays Ms X experienced and confirmed it was taking action to ensure it sent out timely communication.
24. The Council apologised Y’s case did not go to the post 16 panel on 8 August as it did not receive the evidence in time. The Council apologised for this and causing additional delays and distress to Y and Ms X. The Council said the post 16 panel ran twice a month throughout the year and did not run at reduced capacity. The Council apologised it had not communicated clearly to her about the panels. The panel considered Y’s placement on 22 August and agreed Y’s placement at the college for September 2023.

Ms X’s stage 2 complaint

25. Ms X escalated her complaint further because she felt the Council did not understand the full impact on to Y because of the failure to deal with her post 16 placement in time for September 2023. Ms X also complained that, although Y now had place at the school, they could not put transport in place in time for her for the start of school due to making a late transport application. Ms X said if the Council had followed the correct process in 2022 this situation would not have arisen as the decision should have been made sooner. Ms X said she had sent the information requested on time so raised concerns the panel evidence had not met the deadline.
26. In September 2023 the Council agreed a bursary for Y to use for travel to school in place from 11 September 2023 until 31 July 2025. Ms X appealed to the Council about the decision to award Y a bursary as she felt it would jeopardise Y going to school due to the distance. This was because public transport would take too long, and Y could not walk the route. Ms X was unable to take her so requested contract transport to take Y to and from school. Ms X was unhappy at having to appeal due to making a late transport application because of the delays by the Council. Ms X raised concerns about Y’s EHC Plan and placement.
27. The Council considered Ms X’s school transport appeal on 7 September 2023. It agreed to the appeal and change the bursary to contract transport for Y, starting on 25 September 2023.
28. The Council responded to Ms X’s stage 2 complaint in October 2023. It said the concerns about the EHC Plan content were for the mediation/appeal route and could not be dealt with via complaints procedure. The Council accepted that had the post 16 placement been submitted to panel without any of the delays Ms X would have received the outcome sooner. And this would have enabled her to apply for travel assistance earlier than she did. The Council noted it previously agreed a bursary for Y and Ms X used the transport appeals process to request contracted transport which had now been agreed.
29. The Council said Y now had a place at the school and transport. But acknowledged Ms X’s concern about the impact onto Y’s mental health and family due to the delays had not been fully recognised. It agreed to consider a symbolic payment to Y and Ms X.
30. Ms X acknowledged the stage 2 response and financial offer. Ms X said she and Y were happy with the school placement and the transport issue now resolved. But there were delays in working out what A levels Y could study, and she had a limited choice. The school and Ms X devised a plan so Y could take 3 A levels but would need to add a GCSE to progress to A level in one subject which may mean more than 2 years at the school. If this was not possible then Ms X may need to request a tutor for Y and apply to the Council for funds.
31. As an outcome of the stage 2 complaint the Council apologised to Y and Ms X for the delays caused in dealing with Y’s post 16 placement. It offered Ms X and Y a financial remedy in line with our Remedy Guidance:
• £200 to Y as a vulnerable young person in recognition for any contribution made to anxiety or distress, she was already experiencing.
• £100 to Ms X to acknowledge the frustration and uncertainty caused by the delays.
32. Ms X and Y accepted the Council’s offer in January 2024. But said Y was still not able to access 3 A levels which was the basis of the offer from the college in summer 2023. Ms X considered it would impact on Y’s plans and prospects.

SEND Tribunal April 2024

33. The Council and Ms X attended the Tribunal hearing in April 2024. The Tribunal noted the appeal was originally for section I and naming a setting. Y had started at a school, but an issue arose about the number and choice of A levels able to study. Ms X initially understood Y could do 3 A levels but after starting it was not possible due to Y’s limited GCSEs. Ms X wanted the Tribunal to look at section F provision to include some online provision to enable Y to do a third A level and receive tuition. The Council agreed to include section F in the appeal. It said it would only specify tuition in Section F if required to meet a SEN. But did not consider doing 3 A levels was an SEN provision.
34. The SEND Tribunal partially upheld the appeal. It did not consider the want to study a third A level a SEN and so the Council had no duty to provide this. The Tribunal directed a change to the EHC Plan to include the Council developing Y’s curriculum to take into account her wishes and feelings.

My assessment

35. The Council has accepted there were delays in the consultation process after the Autumn 2022 annual review and it was late consulting with Ms X’s preferred setting. The Code requires a council to review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer of a child moving from secondary school to a post-16 institution or apprenticeship. Although the consultation was late the documents show the Council issued Y’s EHC Plan referring to post 16- education by 31 March 2023. This was by 31 March in the calendar year Y was transferring to post 16 educations as required by the Code.
36. Once the Council issued the EHC Plan in March 2023 Ms X had the right of appeal to the SEND Tribunal. I consider it was reasonable to expect Ms X to use that right of appeal as only the SEND Tribunal can direct changes to an EHC Plan and name a placement which was the outcome Ms X was seeking. So, we would not consider any issues Mrs X raised after March 2023 because of her right of appeal.
37. Ms X then appealed to the SEND Tribunal in July 2023. As paragraph five explains we cannot investigate a complaint if someone has appealed to a tribunal about the same matter. This means we cannot investigate any concerns Ms X raised during that period which have been considered by the appeal hearing including her concerns about the suitability of the school and the number of A levels Y could study. It also includes any complaints Mrs X may have about the school transport application as this is a consequence of the appeal.
38. Even if we did decide to consider Mrs X’s complaints about the school transport application, the documents show Mrs X was able to appeal to the Council and it quickly resolved the situation. The Council also provided Mrs X with a financial remedy to cover the frustration and uncertainty caused by its delays. Because of this I consider it unlikely we could add anything to the investigation already carried out by the Council or achieve a different outcome for Mrs X.

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Final decision

39. I have ended my investigation. We cannot investigate Mrs X’s complaints about the way the Council dealt with Y’s post-16 education placement. This is because Mrs X has appealed to the SEND Tribunal about her concerns.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman