Summary: Mrs X complained the Council failed to provide her child, Y, with a suitable alternative provision and the content of their Education, Health and Care Plan from July 2023. She also complained the Council failed to finalise Y’s annual review and provide free school meals. The Council failed to properly communicate the outcome of Y’s annual review. We cannot investigate Mrs X’s complaint about Y’s alternative provision as she appealed to the SEND Tribunal. The Council was under no duty to provide free school meals while Y was out of school. The Council has agreed to apologise to Mrs X.

The complaint

1. Mrs X complained the Council failed to provide her child, Y, with a suitable alternative provision and the content of their Education, Health and Care (EHC) Plan from July 2023. She also complained the Council failed to finalise Y’s annual review and provide free school meals. She says this has meant Y has not received an education, causing them distress and frustration. She wants the Council to carry out a new review of Y’s EHC Plan and provide free school meals.

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The Ombudsman’s role and powers

2. 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)
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. 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.
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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 have discussed the complaint with Mrs X and considered the information she provided. I have also considered information provided by the Council.
8. Mrs X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

The Law

Education, Health and Care (EHC) plans

9. 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 SEND tribunal or the council can do this. 
10. 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.
11. 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) 
12. 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 SEND Tribunal.
13. The council can decide to conduct a reassessment of a child or young person’s EHC Plan if it thinks one is necessary.
14. There is a right of appeal to the SEND Tribunal against:

• 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.

15. 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)
16. 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.

Free School Meals

17. Section 512 of the Education Act 1996 places a duty on school to provide free school meals to pupils of all ages that meet the criteria.
18. Government guidance says councils should consider making equivalent food provision for children who are receiving an Education other than at School (EOTAS) under their EHC Plan.

What happened

19. The Council carried out an Education, Health and Care (EHC) needs assessment of Mrs X’s child, Y. It named school A in Y’s resulting EHC Plan. Mrs X said school A was not suitable and appealed to the SEND Tribunal. In July 2023 the SEND Tribunal considered Mrs X’s appeal and agreed Y should attend school A. At the same time Y stopped attending school.
20. Following the tribunal hearing the Council issued Y’s final EHC Plan, naming school A, in August 2023. Y did not return to school and the Council carried out an annual review in October 2023. At the same time, it asked a second school if it could meet Y’s needs. The school said it could not. Following the annual review the Council issued a letter telling Mrs X it was maintaining Y's plan and school A remained suitable.
21. In January 2024 school A arranged 90 minutes a week alternative provision for Y at a local specialist hub. Mrs X complained to the Council. She said school A remained unsuitable for Y and she wanted the Council to name an alternative school. She also said Y was also entitled to free school meals.
22. The Council responded to Mrs X ‘s complaint in April 2024. It said a suitable offer of education remained open to Y at school A, which could meet their needs. The Council met with Mrs X in May 2024 to try and resolve the situation. Mrs X maintained school A could not meet Y’s needs. The Council agreed to look into extra funding to increase Y’s hours of alternative provision with the aim of reintegrating Y into school A. Mrs X said she did not want Y to reintegrate into school A.
23. In June 2024 Mrs X asked the Council to consider her complaint at stage two of its complaint process. She said Y was not receiving a suitable education, the Council had not responded about Y’s free school meals and its communication had been inadequate. The Council reiterated Y had a suitable offer of education and could access free school meals by attending school A.
24. In September 2024 the Council carried out a new annual review and agreed to an EHC needs reassessment for Y. As part of this process Mrs X asked the Council for a copy of Y’s last EHC Plan. Despite having decided to maintain Y’s plan in October 2023, the Council said it had failed to issue an amended plan following Y’s October 2023 annual review and apologised.
25. Mrs X complained to the Ombudsman. In response to our investigation the Council said it was undertaking a review of its EHC Plan communications.

My findings

26. Y’s absence at school A is linked to Mrs X’s disagreement with the Council naming it in Y’s EHC Plan. Mrs X appealed this to the SEND Tribunal in 2023. The SEND Tribunal agreed with the Council naming School A. We therefore cannot investigate Mrs X’s complaint about lack of special educational provision, or alternative education provision as it is connected to Mrs X’s appeal to the SEND Tribunal.
27. The Council carried out an annual review in October 2023. It issued a letter following the review saying it was going to maintain Y’s plan. It offered Mrs X a fresh right of appeal to the SEND Tribunal, which she did not use. Mrs X says she never received the letter. In September 2024 the Council confused things further by apologising for not issuing an amended plan following the review. In response to our enquiries the Council could not explain these contradictions. This is fault. The Council failed to properly communicate the outcome of Y’s annual review and failed to keep accurate records of the outcome of the review.
28. While this caused Mrs X uncertainty, on balance I consider the Council did not intend to amend Y’s EHC Plan and the Council’s email from September 2024 was a mistake. Following the October 2023 review, Y’s original EHC Plan remained in place, which had already been considered by the SEND Tribunal and we cannot investigate for the reasons set out above. The Council has explained the steps it is taking to resolve the failures in its communication. Because the Council is already taking suitable steps, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.
29. The Council is now carrying out an EHC needs reassessment for Y and will issue a new EHC Plan. If Mrs X disagrees with the new plan she will have a new right of appeal to the SEND Tribunal. Should the Council delay issuing Y’s final plan, it is open to Mrs X to submit a new complaint.
30. Regarding Mrs X’s complaint about free school meals, Y’s EHC Plan says Y should be educated at school A and does not specify any EOTAS provision. There is therefore no duty on the Council to provide Y with free school meals while they remain out of school. The Council is not at fault.

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Agreed action

31. Within a month of our final decision the Council will apologise to Mrs X for the uncertainty caused by its failure to properly communicate and record the outcome of Y’s October 2023 annual review. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have completed my investigation, finding fault causing injustice, which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman