Summary: Mrs X complained about the support the Council provided for her son’s special educational needs. There was no fault in how the Council arranged the provision in Y’s Education Health and Care plan following a SEND Tribunal hearing in March 2021.

The complaint

1. Mrs X complained the Council failed to review her son, Y’s, Education Health and Care (EHC) plan after his needs increased in May 2019. As a result, she said Y’s needs were not met and she had to appeal to a tribunal, at significant time and cost. She also said the Council failed to arrange the agreed provision when Y needed to postpone his start at the agreed school.
2. She wanted the Council to apologise and compensate her for the costs she incurred and the stress she suffered.

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What I have investigated

3. I have investigated how the Council arranged the provision in Y’s EHC plan following the SEND Tribunal decision in March 2021.
4. The final section of this statement explains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

5. 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)
6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. 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)
9. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
10. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
11. 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.
12. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
13. 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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How I considered this complaint

14. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
15. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Education Health and Care plans

16. A child with special educational needs (SEN) 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.
17. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
18. 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)
19. The Ombudsman recognises it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision for every pupil with an EHC plan. The Ombudsman considers that councils should be able to demonstrate due diligence in discharging this important legal duty and as a minimum have systems in place to:
• check the special educational provision is in place when a new or substantially different EHC plan is issued or there is a change in placement;
• check the provision at least annually via the review process; and
• investigate complaints or concerns that provision is not in place at any time.
20. 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, including any named educational placement.
21. 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 right arose 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).

Education and children’s services in the Council’s area

22. From December 2018, the Council’s education and children’s services are provided by Organisation N, a separate, not-for-profit company owned by the Council.
23. Although Organisation N is ‘operationally independent’, the Council has ultimate responsibility for the services it provides. Therefore, we consider the actions of Organisation N to be actions of the Council.

What happened

24. Miss X’s son, Y, has substantial special educational needs (SEN). Y had an Education Health and Care (EHC) plan since 2016 and, as of 2019 was attending School A, the special school named in his EHC plan.
25. Miss X said Y suffered a significant regression in his condition and he became unable to speak, which affected his education. Miss X said she asked the Council, at the time, to review Y’s EHC plan but it refused to do so.
26. The Council next reviewed Y’s EHC plan in June 2020 and issued an amended EHC plan in July 2020. Miss X appealed the content of this plan, including the support Y should receive and the named school, to the SEND Tribunal.
27. During the tribunal process, Miss X and the Council agreed Y should attend a full-time residential placement at School B. The SEND Tribunal issued its decision, naming School B, at the end of March 2020 and the Council issued an amended EHC plan, in line with the Tribunal’s order, on 22 April 2021. The Council sent the plan to Miss X, School A and School B on the same day.
28. School B arranged a transition plan for Y’s gradual move from School A to School B from May 2021. In mid-May School B shared this with the Council which asked the school to confirm when Y was attending School B full time. School B updated the Council on the plan in late June 2021 and confirmed a proposed full-time start date for Y of September 2021.
29. Miss X says School A did not take any action after it received the amended plan and did not provide any of the support in his EHC plan during the transition period. She complained to School A about this, and then to the Council in early July 2021.
30. The Council responded to Miss X’s complaints under the two stages of its complaints procedure in July and September 2021. In these responses, the Council accepted there had been a missed opportunity to check the Y’s transition between School A and School B had been arranged in a timely way.

My findings

31. Councils have a duty to ‘secure’ the provision in EHC plans and we expect councils to take reasonable steps to check that EHC provision is in place.
32. Organisation N issued Y’s amended EHC plan, on behalf of the Council, just over three weeks after the Tribunal’s decision. This was within the required five weeks. The evidence shows the Council shared this with both schools and Miss X on the same day.
33. Y’s EHC plan, as agreed during the tribunal proceedings, assumed the support he needed would be delivered as part of the agreed residential placement at School B and the Council expected Y to start at School B as soon as possible. The Council arranged for Y’s place at School B to be available for him from the date it issued the plan. However, due to his needs, Y needed a gradual transition between placements.
34. Organisation N left arranging Y’s transition between placements to his schools. Given Y’s needs and the significantly different placement, I accept the Council’s explanation that it was appropriate for Y’s schools to arrange the transition and that it should take place gradually. Mrs X also agreed that Y’s move between schools should take place at a suitable pace for Y to adapt. Organisation N asked School B for updates on the transition plan. These updates from School B suggested Mrs X agreed with timings in that plan.
35. Based on Y’s needs, the evidence from the Council and Mrs X’s comments, I am satisfied Organisation N took reasonable steps to arrange the provision in Y’s EHC plan. It made Y’s placement at School B available for him to start as soon as he was ready and asked School B to keep it updated on progress of the transition. The delays in Y starting his placement at School B were not due to any fault on the part of the Council, or Organisation N acting on its behalf.

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Final decision

36. I have completed my investigation. There was no fault in how the Council arranged the provision in Y’s EHC plan following a SEND Tribunal hearing in March 2021.

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Parts of the complaint that I did not investigate

37. I have not investigated Miss X’s complaints about delays in reviewing Y’s EHC plan in 2019. Miss X complained to the Ombudsman in October 2021, so her complaint about this is late. The law says we cannot consider late complaints unless we decide there are good reasons to do so. I accept Miss X found events following her son’s regression very challenging. However, Miss X made other complaints to the Council about Y’s SEN support between 2019 and 2021, including about the failure to review his plan. Although Miss X says the Council did not respond to these, she did not pursue the matter with the Council for a significant period between 2019 and 2021. It would have been reasonable to expect Miss X to have complained about these issues sooner, so I am not satisfied there are good reasons to consider her complaint about this now.
38. I have also not investigated any lack of education for Y during the tribunal appeals process. The law says we cannot consider the consequences of decisions which have been appealed, even if the appeal might not provide a full remedy for the effects on the complainant. Miss X appealed the placement named in Y’s 2020 EHC plan. Any education Y missed was a consequence of the Council’s decision to name the school it did in that plan.

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Investigator's decision on behalf of the Ombudsman