Summary: Mrs X complained the Council failed to provide her child, Child Y with suitable alternative education while they could not attend school and failed to provide provision set out in Child Y’s Education, Health and Care Plan. The Council was not at fault because the Council considered Child Y had a suitable school placement and Mrs X had a right of appeal to the SEND tribunal. The Council was at fault for poor record keeping of a meeting and key decisions. We have already made recommendations to this Council on similar cases, so no further recommendations were needed.

The complaint

1. Mrs X complained the Council failed to provide the special educational provision inline with her child, Child Y’s final Education Health and Care (EHC) Plan from September 2022 to March 2023 and did not respond to her formal complaint within the Council’s complaint timescale.
2. Mrs X said this caused Child Y to miss out on appropriate provision to which they were entitled, caused unnecessary distress, uncertainty, mental health impacts and she was put to avoidable time and trouble.

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The Ombudsman’s role and powers

3. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
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. 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)
7. 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.
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 the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have and have not investigated

10. I have investigated the time period between September 2022 and May 2023.
11. The law says 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)
12. Mrs X complained to the Ombudsman in late April 2023 about events starting in July 2019. There are no good reasons to exercise discretion to investigate events going back to 2019 because Mrs X could have complained to us sooner.
13. Mrs X also said Child Y was in school full time in the summer term of 2022. On this basis I have investigated the period from early September 2022 to late May 2023 when the Council issued its Stage 2 response.

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How I considered this complaint

14. I considered:
• the information Mrs X provided about her complaint and spoke to her on the telephone;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
15. Mrs X and the Council had an opportunity to comment on the draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

16. A child with special educational needs (SEN) 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. The EHC Plan is set out in sections which include:
• Section B: Special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of educational placement.
18. There is a right of appeal to the SEND tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
19. 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)
20. 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.
21. 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.

The Code of Practice

22. The Code says councils should review the plan at least annually. The review meeting will usually be led by the school, which should send the council a report of the meeting within two weeks.
23. Within four weeks of the review meeting, the council must decide whether it proposes to keep the EHC Plan as it is, amend the plan or cease to maintain it. It must tell the child’s parents and school its decision. If the plan needs amending, the council should start the amendment process without delay and should issue an amended plan within 8 weeks of its notice to the parties that it proposes to amend the plan.

Council complaints process

24. The Council’s complaints procedure is as follows:
• Service resolution: this is a more informal approach and addresses issues raised as concerns or queries, not complaints. A complaints officer would try and resolve them as soon as possible. It usually takes ten working days to conclude.
• Stage 1: this takes about ten working days to complete but can be extended to 20 working days when needed. If a person remains dissatisfied, they can ask for it to go to the next stage.
• Stage 2: this is investigated by an independent senior manager or independent person. It usually takes 25 to 65 days to complete.

What happened

25. Child Y has an Education, Health and Care (EHC) Plan and lives with their family.
26. In September 2022, Child Y attended a special needs school, School 1. Child Y’s mother, Mrs X said changes in staff and class pupils in the new academic year affected Child Y’s behaviour, anxiety and mental health at School 1.
27. In mid-November 2022 Mrs X emailed the Council and said Child Y started to refuse to attend School 1 in early November 2022.
28. In late November 2022 Mrs X emailed the Council with Child Y’s parents views before the annual review meeting.
29. Two days later Child Y’s annual review took place it was attended by Mrs X, School 1, the Council, Child Y’s disabled children’s family worker and SEN support officer. The annual review said:
• Child Y’s current attendance was 81.6%;
• due to anxiety Child Y sometimes refused to attend school, that reduced in the previous academic year and Child Y started to attend School 1 full time. The start of the September 2022 academic year had been difficult for Child Y and started to refuse to attend School 1 due to anxiety and mental health issues;
• suggested amendments to Child Y’s EHC Plan;
• included Mrs X’s parental comments;
• Child Y had a more bespoke class timetable which Mrs X said helped Child Y;
• The occupational therapist (OT) visited Child Y every Thursday and speech and language therapy (SALT) would be contacted;
• School 1 met Child Y’s needs; and
• Mrs X and School 1 said Child Y’s EHC Plan needed amending because of significant changes.
30. Child Y stopped attending School 1 the same day the annual review took place in late November 2022 and the Council was aware at that point.
31. The Council said when it was aware Child Y could not attend School 1, it contacted School 1 to set up provision to encourage and support Child Y to reintegrate into School 1. An alternative class was also offered to Child Y. The Council said Mrs X told it this would not work for Child Y and they would not attend School 1.
32. In early December 2022 the Council received the annual review paperwork from School 1.
33. Four days later Mrs X emailed the Council and said Child Y had missed education since the annual review meeting. She also asked about education otherwise than at school (EOTAS) for Child Y, which she said would better suit Child Y’s needs.
34. In late December 2022 the Council sent Mrs X a letter in response to the annual review report and said it intended to amend Child Y’s EHC Plan.
35. At the start of January 2023 Mrs X contacted the Council about EOTAS for Child Y. Three days later a meeting took place between the Council and Mrs X to discuss Child Y’s education moving forward. The Council could not provide minutes from this meeting because of a change in Council staff.
36. In mid-January 2023 Mrs X made a Stage 1 complaint to the Council. She complained Child Y had not received suitable alternative education under Section 19 of the Education Act and had not received provision set out in Section F of Child Y’s EHC Plan.
37. In mid-January 2023 the Council issued Child Y’s final amended EHC Plan and the letter included Mrs X’s appeal rights to the SEND tribunal. Mrs X said the final EHC Plan did not include the changes she asked for and it still named School 1 in section I. Mrs X was unhappy with Child Y’s Final amended EHC Plan and said she would appeal to the SEND Tribunal over Sections B, F and I.
38. Between late January 2023 and mid-March 2023 Mrs X contacted the Council five times asking for a response to her Stage 1 complaint
39. In mid-March 2023 Mrs X appealed Child Y’s final amended EHC Plan dated mid-January 2023 to the SEND tribunal.
40. In late April 2023 the Council sent Mrs X its Stage 1 response, it said:
• it apologised for the delayed response;
• the Council spoke with School 1 and considered alternative options to reintegrate Child Y back to School 1, including changing Child Y’s class settings, but Mrs X said it would not work;
• a formal EOTAS arrangement was arranged in early March 2023;
• decisions and actions could have been timelier following the annual review in November 2022 and it apologised;
• it could not look into the complaint about lost provision because Mrs X had not specified the provision lost.
41. Mrs X remained unhappy and raised a complaint with us and escalated her complaint to the Council’s Stage 2 process. The Council did not agree to undertake a Stage 2 review of Mrs X’s complaint. The Council told Mrs X to complain to us if she remained dissatisfied which she already had.

My findings

42. Child Y’s annual review meeting was held in late November 2022. School 1 sent the Council the annual review paperwork within two weeks of the meeting. Within four weeks of the annual review the Council decided to amend Child Y’s EHC Plan. It told Mrs X of its decision which was the correct process and within statutory timescales.
43. The Council was aware Child Y stopped attending School 1 after the annual review meeting in late November 2022. However, the Council did not provide records of how it considered this at the time and whether Child Y should continue to attend School 1 or whether alternative provision was suitable. The Council has a duty to record its consideration of a decision at the time. The poor record keeping was fault.
44. The Council said it did contact School 1 to discuss supporting Child Y to reintegrate into School 1 and offered Child Y a change of classes. Mrs X told the Council this would not work. It was Mrs X’s decision not to send Child Y back to School 1 and ask for EOTAS. The Council did discuss EOTAS with Mrs X in a meeting in early January 2023, but the Council did not have a record of the meeting minutes. There is no evidence School 1 was not suitable and on balance it was unlikely, given the time of year that the Council could have put EOTAS in place before it reissued Child Y’s EHC Plan in mid-January 2023 which included the same placement, School 1. This did not cause Mrs X an injustice. The lack of record keeping of the meeting was fault.
45. The Council issued Child Y’s final amended plan without delay in mid-January 2023 which was within the eight-week statutory timescale. At that point Mrs X had a right of appeal to the SEND tribunal on the placement and Child Y’s provision.
46. The Ombudsman has already made recommendations to this Council on a similar case. The Council agreed to review procedures to ensure proper consideration is given to whether it needs to make alternative provision on relevant cases. This included making clear documented decisions which explained the issues and evidence considered and the need to record whether meetings took place, case 22010883. On this basis, no further recommendations were needed.

Complaint response delays

47. The Council was at fault for delay in sending Mrs X’s Stage 1 response. The response was 2 and a half months over the 20 day timescale. This caused Mrs X frustration and avoidable time and trouble contacting the Council for a response. The Council has already apologised to Mrs X for the delayed response which is an appropriate remedy for the injustice.
48. The Ombudsman has already made recommendations to this Council on similar cases. It said it would act to ensure delays in responding to complaints does not happen in future, case 22010883 . The Council said it had addressed delays caused by under staffing by drafting in staff to assist with the backlog and recruiting additional staff so that the feedback team was properly resourced to prevent future delays, case 22014122. On this basis, no further recommendations are needed.

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Final decision

49. I have completed my investigation finding fault causing injustice. The Council has already apologised to Mrs X for the delayed complaint response which was an appropriate remedy. We have already made recommendations to this Council on similar cases on poor record keeping so no further recommendations were needed.

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Investigator's decision on behalf of the Ombudsman