Summary: I have discontinued my investigation. Ms X had a right of appeal in February 2020 and in July 2021 which we would have expected her to use. The Ombudsman cannot achieve the outcome Ms X wants. The Ombudsman cannot direct changes to an EHC plan or name a different school, only the SEND tribunal can do this.

The complaint

1. Ms X complains about the way the Council considered her child’s special educational needs and about the Council’s choice of school named in her child’s Education, Health and Care (EHC) plan.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• it would be reasonable for the person to ask for a council review or appeal.

(Local Government Act 1974, section 24A(6))

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
• 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)
• Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(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)
5. 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. A child with special educational needs may have an Education, Health and Care (EHC) plan. This 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 education, or name a different school. Only the tribunal can do this.

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How I considered this complaint

7. I have considered information provided by Ms X and the Council including:
• Complaint correspondence
• Letters providing a right of appeal.
8. I have considered relevant law and statutory guidance:
• The Children and Families Act 2014
• The Special Educational Needs and Disability (SEND) Regulations and Code of Practice.

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What I found

Factual background

9. Ms X complained to the Ombudsman in August 2020 and July 2021.
10. In August 2020 Ms X complained about ‘misinformation’ by the Council, poor communication, a lack of empathy for her child’s wellbeing and education and delay updating an Education, Health and Care (EHC) plan. Ms X complained the Council didn’t answer questions about funding and a panel meeting and failed to provide a copy of minutes of the panel meeting.
11. Ms X said the alleged fault and delay led to her child having to attend an unsuitable school.
12. As we were not satisfied the Council had had an opportunity to consider the complaint through its own complaint process, we declined to investigate at that time and referred Ms X back to the Council.
13. The Council completed stage two of its complaint process in December 2020 and found:
• There had been poor communication and a failure to inform Ms X the EHC officer had changed.
• The Council had failed to inform Ms X her choice of school would need to carry out their own assessment as part of their admissions process. The Council received a letter from this school in January 2020 and did not share it with Ms X until June 2020.
• The Council had issued a final EHC plan naming the Council’s choice of school in February 2020, an accompanying letter explained Ms X had a right of appeal if she disagreed with the Plan or choice of school.
• Ms X had not used her right of appeal.
• The Council had been in touch with the current school and was satisfied Ms X’s child had settled in well. Ms X could consider a change of placement at the next annual review, but the Council’s view was that needs were being met at the current school.
• It had restructured its service and was now providing ‘regular catch-ups’ with schools which should improve communication.
• Ms X had requested funding for an assessment visit to her preferred school, but costings would have to be submitted and approved by the Council’s panel.
14. The Council advised Ms X she could bring her complaint back to the Ombudsman if she remained dissatisfied, but she did not do so.
15. The Council held an annual review of the EHC plan in 2021. Ms X complained to the Ombudsman in July 2021 she felt ‘the annual review and conflicting professional opinions were not based on fact’. Ms X said her child was attending a large mainstream secondary school, but she had secured a place at a smaller independent school. Ms X said the current secondary school did not consider it could meet her child’s needs, but the Council had not agreed to a change of placement. Ms X said that since the stage two response the Council had continued to fail her child and had made decisions which were not in the child’s best interests.
16. Ms X says her child is having to attend a school she regards as unsuitable and that the outcome she wants from her complaint is for her child to have the opportunity to attend a school where they can meet their full potential.
17. Ms X has not taken her concerns about the outcome of the 2021 annual review though the Council’s complaint process.
18. Ms X did not use the right of appeal she obtained in July 2021 when the Council decided not to change the placement after the annual review.

Analysis

19. Ms X complained to us in July 2020 about the process leading up to the final EHC plan issued by the Council in February 2020. We decided the complaint was premature for us to consider as Ms X had not used the local complaint process.
20. The Council investigated and issued a stage two response in December 2020. Ms X did not come to us at that time but did come back to us in July 2021.
21. I find Ms X’s July 2021 complaint is a new complaint that has not been through the Council’s complaint process. It relates to the 2021 annual review, not the events in 2020. Even if Ms X wished us to also consider the events prior to February 2020, it is now too late for us to do so. It is over twelve months since these events (February 2020) and if Ms X was dissatisfied with the Council’s December 2020 complaint response we would have expected Ms X to refer the complaint back to us at that time, not wait seven months.
22. Further, Ms X’s complaint is about the Council’s decision at annual review not to change the school named in the EHC plan. This decision carries a right of appeal which we would have expected Ms X to use.
23. I have checked with the Council that it provided Ms X with a right of appeal. It has provided me with a copy of the letters it issued to Ms X in February 2020 and July 2021 explaining her appeal rights.
24. The Council has also confirmed that even if I referred Ms X’s complaint about the 2021 annual review back to the Council it would not consider this because disagreement with the decision not to change the placement ‘sits outside of our complaints process because the matter has its own appeal process’. I agree with this analysis.

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Investigator's decision on behalf of the Ombudsman