Summary: Miss X complains the Council did not fully secure the provision detailed in her child’s Education, Health and Care Plan. The Council accepts it was at fault for failing to secure the provision. The fault has caused an injustice to Miss X and her child. The Council has agreed to our recommendations to remedy the injustice.

The complaint

1. The complainant, who I shall refer to as Miss X, complains the Council has failed to deliver the provision specified in her child’s Education, Health and Care (EHC) Plan since it was finalised in 2019.

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What I have and have not investigated

2. I am limited in the extent to which I can investigate Miss X’s complaint. Miss X complains of failures by the Council to deliver educational provision to her child in accordance with his EHC Plan since July 2019 when his plan was finalised. Miss X brought her complaint to the Ombudsman in January 2022. I have not investigated the failures Miss X complains of from 2019 as they are considered late complaints (as explained in paragraph 8 below).
3. I have not investigated matters from 30 September 2021. This is when Miss X submitted her appeal to the SEND Tribunal. Miss X appealed sections B (special educational needs), section F (special educational provision) and section I (placement) of her child’s EHC Plan. 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 (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
4. Thus, I am limited to investigating the period from 1 September 2021 to 30 September 2021.

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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 cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (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. 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. 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

10. I considered Miss X’s complaint and the information she provided.
11. I considered the information I received from the Council in response to my enquiries.
12. Miss X and the Council were given the opportunity to comment on a draft of this decision. I considered the comments received before making this final decision.
13. 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

Law and guidance

14. A child with special educational needs may have an 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 SEND tribunal can do this.
15. 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. 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.
16. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
17. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have (Education Act 1996, section 19(6)).
18. The education must be full-time unless the council determines full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health (Education Act 1996, section 3A and 3AA).
19.  

What happened

20. The following is a brief chronology of key events relevant to this investigation. It is not intended to be exhaustive and does not refer to every interaction that Miss X had with the Council.
21. Miss X’s child, Y, was diagnosed with Autistic Spectrum Condition (ASC) in 2016. Y also experiences severe anxiety. His first EHC Plan was finalised in July 2019 when he was 12 years old. Y was attending a mainstream secondary school until September 2020 when he began attending School B, a free special school.
22. An emergency annual review meeting was held in June 2021 due to severe anxiety Y was experiencing with his placement at School B. Educational provision in Y’s plan was updated and finalised on 31 August 2021. The Council requested a timetable from School B to show how the provision would be delivered.
23. In the school year of September 2021, Y managed to attend School B on only two days. On 8 September 2021, Miss X requested alternative provision for Y.
24. On 30 September 2021, Miss X appealed the contents of Y’s EHC Plan to the SEND Tribunal. Miss X appealed sections B (special educational needs), section F (special educational provision) and section I (placement) of the plan.
25. In October 2021, Miss X complained to the Council about it not arranging alternative provision for Y when he had been out of school since 7 September 2021.
26. The Council acknowledged Miss X’s complaint and apologised for the delay in arranging alternative provision. The Council said Miss X’s original request for alternative provision ‘got lost in the sheer weight of emails’ it had received.
27. The Council confirmed it was liaising with Miss X’s preferred providers and it was in the process of arranging assessments in preparation for the SEND Tribunal appeal.

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Analysis

28. As explained in paragraphs 2-4 above, I am limited to looking at and making any findings of fault on solely the month of September 2021.
29. I have seen evidence of the difficulties the Council experienced from School B in arranging the delivery of the provision in Y’s EHC Plan. I do not consider the Council is at fault for the failure to deliver provision in accordance with Y’s EHC Plan as there is evidence it took reasonable steps in trying to secure the provision. However, I do consider the Council is at fault for missing Miss X’s request for alternative provision and thus failing to arrange any provision in September 2021. The Council has accepted it did not provide Y with a suitable education in September 2021. This meant Y missed out on education he was entitled to receive, and Miss X was caused avoidable distress and time and trouble raising complaints about the matter.
30. Our guidance on remedies says we would usually consider a figure of between £200 and £600 per month for lost educational provision, depending on the circumstances of each case. I have taken into account Y’s special educational needs and the circumstances in this case. I consider that £200 is suitable to remedy the injustice caused by the lost provision in September 2021.

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Agreed action

31. To remedy the injustice to Miss X and Y, the Council has agreed that, within four weeks of this final decision, it will:
• Apologise for the identified fault and injustice caused;
• Pay Miss X £200 to be used on the health and wellbeing of Y; and
• Pay Miss X £150 to reflect the avoidable time and trouble complaining and her avoidable distress.
32. The Council will provide us with evidence it has complied with the above actions.

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Final decision

33. There is fault by the Council and it has agreed to our recommendations to remedy the injustice to Miss X and Y. I have completed my investigation and closed this case.

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Investigator's decision on behalf of the Ombudsman