Summary: Miss X complained the Council failed to provide her child, Y, with a suitable school placement or alternative education since January 2024. The Council failed to inform Miss X of the outcome of the annual review of Y’s Education, Health and Care (EHC) Plan. However, Miss X had a right to appeal Y’s subsequent EHC Plan and did not use it. We therefore will not investigate any lack of special educational provision, or alternative educational provision.

The complaint

1. Miss X complained the Council failed to provide her child, Y, with a suitable school placement or alternative education since January 2024. She says this caused her family distress and impacted Y’s mental health. She wants the Council to put alternative provision in place and identify a suitable school.

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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. 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)
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 Tribunal in this decision statement.
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)
6. 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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How I considered this complaint

7. I have discussed the complaint with Miss X and considered the information she provided. I have also considered information provided by the Council.
8. Miss X and the Council have had an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Education, Health and Care 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 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. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan.
11. If the child’s parents or the young person disagrees with the decision to cease the EHC Plan, the council must continue to maintain the EHC Plan until the time has passed for bringing an appeal, or when an appeal has been registered, until it is concluded.
12. 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)
13. 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.
14. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.

What happened

15. Miss X’s child, Y, has an Education, Health and Care (EHC) Plan. The Council carried out an annual review for the Plan in November 2023. In January 2024, Y’s school, school A, suspended Y for five days.
16. Following the suspension Miss X told school A she was withdrawing Y to educate them at home. She said she understood Y would not receive all their provision at home, but she did not think school A could meet Y’s needs. School A said it would tell the Council. It said it could not remove Y from the school roll until it heard back from the Council.
17. The Council contacted Miss X. It said it was consulting with alternative schools following Y’s annual review. It said Miss X would need to tell its Elective Home Education panel how she intended to meet Y’s needs while educating Y at home. Miss X said she did not want to home educate Y but had no choice.
18. On 14 February 2024 the Council issued Y with a new EHC Plan. It named school A as Y’s placement until July 2024, and “a specialist setting” from September 2024. It offered Miss X a right of appeal against its decision which she did not use.
19. Miss X complained to the Council in March 2024. She said Y was not receiving an education or the provision in their EHC Plan. In its response the Council said it had failed to issue a decision following Y’s annual review but had now issued an amended EHC Plan. It said none of the schools it had consulted could meet Y’s needs. It confirmed Y remained on the roll at School A until the summer and it had secured a provider for Y’s Speech and Language (SALT) provision. It said the provider had been trying to contact Miss X without success.
20. Miss X escalated her complaint to stage two. She said she wanted an immediate new placement for Y and the Council was not meeting its duties under the Education Act. The Council emailed Miss X trying to arrange Y’s SALT provision and discuss the complaint further.
21. In August 2024 the Council responded to Miss X at stage two of its complaint process. It said it had not met its duty to secure a suitable alternative education for Y since January 2024. It apologised and offered Miss X £1800 to recognise two terms of missed education. The Council added it was yet to name a school for Y from September 2024. It said it would look to secure alternative provision for Y if it could not name a school before September. Miss X complained to the Ombudsman.

My findings

22. The Council carried out an annual review of Y’s plan in November 2023 but failed to issue a decision following this review. This is fault and caused Miss X a period of uncertainty over the outcome of Y’s annual review until it issued the amended final EHC Plan in February 2024. The Council has already apologised to Miss X and I consider this a suitable remedy.
23. While the Council did not issue a decision, it did issue a new EHC Plan naming school A as Y’s placement up to July 2024, it therefore considered school A was a suitable placement and could meet Y’s needs. Miss X had a right of appeal to the Tribunal about this decision and did not use it. I consider it reasonable for Miss X to have used her right of appeal and so I will not investigate Y’s placement or any lack of special educational provision, or alternative educational provision during this time.

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Final decision

24. I have completed my investigation, finding fault causing injustice, which the Council has already remedied.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman