Summary: Mrs X complains the Council delayed in issuing her child’s education, health and care (EHC) Plan, it failed to provide a suitable education when her child was out of school and it failed to communicate with her effectively. The Council is at fault for failing to respond to Mrs X’s complaints and for delays in finalising her child’s EHC Plan. We are unable to investigate matters relating to provision because Mrs X has used her right of appeal. The faults we identified caused an injustice and the Council has agreed to remedy the injustice caused by apologising to Mrs X, providing her with a remedy payment to acknowledge the avoidable distress caused and it has agreed to respond to her outstanding complaint.

The complaint

1. Mrs X, complains the Council:
• Failed to issue her child, Y’s education, health and care (EHC) Plan within the statutory timescale;
• Failed to secure the provision set out in Y’s EHC Plan;
• Failed to provide full time alternative provision when Y was not attending school;
• Failed to communicate properly with her; and
• Failed to update the EHC Plan properly following an annual review.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
5. 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)
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 Tribunal in this decision statement.
7. 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)
8. 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)
9. 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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What I have and have not investigated

10. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal. For this reason we are unable to investigate matters relating to educational provision during the relevant period as Y’s special educational needs and the provision contained in his EHC Plan are currently being considered by the SEND Tribunal as a result of Mrs X using her right of appeal.
11. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal, including delays in the process before an appeal right started.
12. Mrs X has also requested we investigate events in relation to alternative provision that happened more than 12 months ago. We consider these complaints as ‘late’ (Local Government Act 1974, sections 26B and 34D, as amended). Therefore, I am unable to investigate events regarding alternative provision that occurred before May 2023.

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How I considered this complaint

13. I considered Mrs X’s complaint and the information she provided.
14. I considered the information I received from the Council in response to my enquires.
15. Mrs X and the Council had the opportunity to comment on a draft of this decision. I considered their comments before making this final decision.

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What I found

Relevant law and guidance

Education, health and care Plans

16. 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. 
17. 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. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply);  
• Councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.

18. The council must consult with the parent or young person’s preferred educational placement who must respond with 15 calendar days.
19. Following completion of an EHC needs assessment, if the Council decides an EHC Plan is not necessary it must notify the child's parents or the young person of its decision and of their right to appeal that decision.
20. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
21. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

22. 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.

Alternative education

23. 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 or alternative education provision.
24. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
25. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
26. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
27. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

28. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.

Appeal rights and the Ombudsman’s jurisdiction

29. 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)
30. 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.
31. 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.
32. 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

33. On 19 April 2022 Mrs X requested a needs assessment of her child, Y’s, education, health and care needs. On 23 May 2022, the Council refused to assess Y because it was of the view that his needs were being met by the school’s existing resources. Mrs X used her right to appeal the decision to the SEND Tribunal.
34. On 19 October 2022, the Council conceded the appeal and agreed to assess Y.
35. On 3 May 2023, the Council issued a final EHC Plan for Y.
36. Mrs X was unhappy with the content of Y’s EHC Plan and she used her right to appeal to the SEND Tribunal.
37. Mrs X complained to the Council on 24 April 2023. The complaint was about the Council’s failure to issue Y’s EHC Plan within the statutory timescale.
38. The Council sent its Stage 1 response to Mrs X on 19 May 2023. It apologised the assessment had taken longer than it should and provided Mrs X with the contact details for Y’s caseworker. It did not provide any reasons for the delay.
39. On 28 June 2023, Mrs X requested to escalate her complaint to Stage 2.
40. In October 2023 the school began implementing strategies to help Y’s reintegration.
41. In November 2023 Mrs X requested alternative provision to be arranged by the Council.
42. On 1 December 2023 the Council’s legal team sent a letter to Mrs X on behalf of the school advising her the Council had accepted her request to arrange alternative provision.
43. On 5 March 2024, the Council issued Y’s final EHC Plan.
44. The Council sent its Stage 2 response on 22 May 2024. It apologised the Stage 1 response did not fully address her concerns. It upheld this element of her complaint.
45. Mrs X had complained the Council had taken 54 weeks to finalise Y’s Plan. The Council said it took 30 weeks to finalise Y’s EHC Plan and it apologised for the delay.
46. Mrs X brought her complaint to the Ombudsman on 2 May 2024.
47. On 18 June 2024 Mrs X notified the Council that Y was unable to attend school and she requested alternative education be arranged.
48. The SEND Tribunal hearing was due to take place in November 2024 regarding Y’s EHC Plan. But this was vacated by the Tribunal and a new hearing date was set. Tribunal proceedings are still ongoing.

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Analysis

EHC Plan

49. On 18 October 2022 the Council conceded the appeal and agreed to assess Y’s needs. If a Council concedes an appeal and then decides to issue an EHC Plan, it must issue a final plan within 14 weeks of the date it notified the Tribunal it would not oppose the appeal. The Council delayed issuing Y’s Plan by 14 weeks and this is fault. The delay is significant and warrants a remedy for the uncertainty and frustrated appeal rights.
50. An EHC Plan must be reviewed and amended in sufficient time prior to a child moving between key phases of education. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. Y was due to start his secondary education in September 2024 therefore the Council should have issued his final EHC Plan by 15 February 2024. The Council did not finalise Y’s EHC Plan until 5 March 2024. This delay of two and a half weeks is fault but I do not consider the injustice is significant enough to warrant a remedy.

Alternative provision

51. 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.
52. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
53. The Council issued a final EHC Plan for Y on 3 May 2023. Mrs X was unhappy with the contents of the Plan and she used her right of appeal. Mrs X appealed Section B (Y’s special educational needs) and Section F (the specified provision). A further EHC Plan was finalised in March 2024 but Mrs X’s concerns with Section B and F remain. The appeal proceedings are still ongoing.
54. When the Council accepted its Section 19 duty in December 2023, I would normally have expected the Council to carry out a review of the provision and to have considered what alternative provision was needed alongside what the school was offering. After all, it was obvious that the provision specified would not be available or accessible without an alternative offer, as despite the various interventions by the school, Y’s attendance and engagement was not improving.
55. However, the courts have ruled that we have no legal power to consider the matter of educational provision for a child where a parent appeals against a final EHC Plan issued by a council. Therefore, we are unable to investigate the provision made or not made for Y from 3 May 2023.
56. I acknowledge the SEND Tribunal is concerned with the child’s future education, not the past situation. Due to the restrictions on our jurisdiction 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 a complaint will be within our jurisdiction (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). There is a further restriction on events regarding alternative provision that occurred before May 2023 that I am unable to investigate as explained in paragraphs 3 and 12.
57. Although the Ombudsman does not have jurisdiction to investigate the provision, I understand Mrs X has submitted a complaint to the Council regarding her concerns about the provision. Mrs X says she is yet to receive the Council’s response to this complaint. The Council has agreed to provide Mrs X with a response to her complaint.

Complaint handling

58. On 28 June 2023 Mrs X requested her complaint be escalated to Stage 2 of the Council’s complaints procedure. The Council should have responded within 20 working days but it did not respond until 11 months later. This delay has caused significant frustration and uncertainty over a prolonged period of time. It has also resulted in avoidable time and trouble. This injustice warrants a remedy and I have made a recommendation below.
59. On 1 August 2024, Mrs X submitted a Stage 1 complaint to the Council about the lack of alternative provision it had arranged for Y. Mrs X says she has not received a response to this complaint. This is not in accordance with the timescales stipulated in the Council’s Corporate Complaints Procedure and is fault. The delay in responding to the complaint has caused frustration and uncertainty. The Council has agreed to provide Mrs X with a response to this complaint.
60. Mrs X has complained about Council’s general communication with her. I acknowledge the Council received a lot of correspondence from Mrs X and I also acknowledge Mrs X’s frustration with some of the replies, but I do not consider the injustice is significant enough to warrant a remedy.

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Agreed action

61. To remedy the injustice caused by the faults identified above, the Council has agreed that within four weeks of this final decision, it will:
• Apologise in writing to Mrs X for the identified faults;
• Pay Mrs X £350 for the frustration, upset and frustrated appeal rights to the SEND Tribunal caused by the delay in issuing Y’s final EHC Plan in May 2023;
• Pay Mrs X £250 for the avoidable distress and time and trouble caused by the way the Council has dealt with Mrs X’s complaints; and
• Provide a response to Mrs X’s complaint regarding alternative provision that she submitted in August 2024.
62. The Council will provide us with evidence it has complied with the above actions.

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Final decision

63. There is fault and the Council has agreed to our recommendations to remedy the injustice caused by the fault. Therefore, I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman