Summary: Miss Y complains about the Council’s failure to provide full-time provision for her child, D. As a result, D did not have a planned transition into secondary school and missed a vital period of education in school year seven. In our view, there is fault by the Council during the period within our jurisdiction. We cannot remedy the fault during the period of appeal. The Council has agreed to provide the actions listed at the end of this statement.

The complaint

1. Miss Y complains the Council failed in its statutory duty to provide full-time or equivalent education for her child, D, at the beginning of their secondary schooling. As a result, she says D did not have a planned transition into secondary school and missed three months of full-time education.
2. Miss Y says this also caused her injustice in the form of distress and financial loss.

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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 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended). 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.
6. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
7. 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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What I have and have not investigated

8. The term jurisdiction refers to our legal powers to investigate a complaint. For the jurisdictional reasons explained in paragraphs 5 and 6, I have only investigated matters from 12 October to 1 December 2022 because the Council should have made provision available for D as per its Section 42 duties.
9. I have not investigated matters which occurred between February and October 2022 because Miss Y exercised her right of appeal against the contents of the final EHCP issued in February 2022.
10. I have investigated matters from 12 October because the Council conceded to the appeal and the Tribunal issued a consent order. The Council should have made the provision available as per the final EHCP issued on 2 November 2022.

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How I considered this complaint

11. During my investigation I considered the information provided by Miss Y.
12. I made enquiries of the Council and considered its response alongside the relevant law and guidance which I have referred to in this statement.
13. Miss Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making this final decision.
14. 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 found

What should happen

15. Children with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP.
16. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
17. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
18. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
19. Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes within four weeks of the annual review meeting. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
20. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
21. An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer into or between schools.

What happened

22. D has special educational needs and an EHC plan which was first issued in January 2021. D attended a mainstream primary school. D’s plan was annually reviewed in March 2021 during school year five. One of the aims of this review was to plan for D’s transition to secondary school in September 2022.
23. The Council issued D’s amended final EHC plan on 14 February 2022. This did not name a school but instead said that D would attend “the nearest state-funded special school for children with communication and interaction/ASD [Autistic Spectrum Disorder] needs”.
24. In April the Council consulted with Miss Y’s preferred school. They declined to offer a place for D.
25. The following month, the Council asked D’s primary school for a copy of the documents for the annual review which was due by March 2022. The school confirmed they had not reviewed D’s plan because they were waiting to receive details of D’s new secondary school so that they could be invited to the review.
26. The plan issued by the Council in February 2022 came almost one year after the previous annual review. The Council therefore asked the school to review D’s plan urgently. This took place on 18 May 2022.
27. Dissatisfied with the contents of D’s plan, Miss Y used her right of appeal to the SENDIST tribunal. In October 2022 the Council conceded the appeal and named Miss Y’s preferred choice of school.
28. Miss Y says the delay in finalising D’s plan meant that he missed education and did not benefit from a planned transition from primary to secondary school.
29. Miss Y complained to the Council in January 2023. She said D missed 14 weeks of education. Although the Council made some alternative provision available for five hours a week, Miss Y said this was not sufficient or suitable for D who did not start secondary school until December 2022.
30. The Council upheld Miss Y’s complaint. In summary it said:
• The Council was aware that D was not accessing education from the end of the 2022 summer term.
• D did not have access to an educational setting throughout September 2022.
• The delay in finding suitable provision caused anxiety because D did not know which school they would be attending.
• As a result, the Council proposed a total financial remedy of £747 made up of:
1. £200 to acknowledge D’s distress.
2. £300 to be used for D’s educational benefit in recognition of the missed full-time provision from 1 September to 29 September 2022.
3. £147 towards the cost of online tutorials purchased by Miss Y.
4. £100 in recognition of Miss Y’s time and trouble.
• The Council also apologised and agreed to arrange a staff briefing to review its record keeping procedures to help ensure failings are not prevented in other cases when officers leave the employment of the Council.

Was there fault in the Council’s actions causing injustice to Miss Y and D?

31. The key dates affected by fault are the 14 weeks between September and December 2022. For the reasons explained in the earlier sections of this statement, I cannot investigate what happened between 14 February and 12 October 2022 because Miss Y had a right of appeal against D’s final EHC plan, which she used. This is because Miss Y wanted a specific school which the Council agreed to name in mid-October.
32. The Council received the SENDIST order on 12 October. It had five weeks from this date to issue D’s amended plan. The Council complied with this deadline because it issued the plan on 2 November. Although I cannot look at the period between 1 September and 12 October, I have considered the delay in November and December when D had a named placement which was not available. During this time, the Council was in breach of its Section 42 duties which caused injustice both in terms of the missed provision and the lost opportunity for D to transition in the autumn term.
33. With this in mind, it is my view that the remedy proposed by the Council should be increased in line with the LGSCO’s Guidance on Remedies. The Council has agreed to undertake the actions listed below.

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Agreed action

34. Within four weeks of my final decision, the Council has agreed to:
• Pay Miss Y for her quantifiable losses of £147;
• Make a symbolic payment of £250 in recognition of Miss Y’s distress and time and trouble;
• Pay £480 for D’s educational benefit. This is made up of £150 per week of missed provision between 2 November and 1 December, minus the five hours of weekly provision he received in this period which equates to roughly 20% of the full time equivalent; and
• Provide evidence of the service briefing undertaken by the Council to review record keeping procedures to ensure the identified failings are not repeated in other cases when staff leave their role.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The agreed actions will provide an appropriate remedy for the injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman