Summary: Ms M complains her son, B, was without suitable education for more than a year following the Council’s refusal to secure a reassessment of his Education, Health and Care (EHC) needs. We cannot investigate Ms M’s complaint because she appealed the Council’s decision, and sections B, F and I of her son’s EHC Plan. B’s lack of education was a consequence of the matters Ms M appealed.

The complaint

1. Ms M complains her son, B, was without suitable education for more than a year following the Council's refusal to secure a reassessment of his Education, Health and Care (EHC) needs.
2. She complains about her dealings with the Council. She believes it should have been possible to secure B’s return to school six months sooner.

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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 a complaint if someone has appealed to a tribunal about the same matter. (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. 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

7. I have considered information provided by Ms M and information provided by the Council. I invited Ms M and the Council to comment on my draft decision.

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What I found

8. Ms M’s son, B, has an Education, Health and Care (EHC) Plan maintained by the Council. He attended a mainstream secondary school. He began to struggle when schools returned to ‘normal’ after the pandemic. Ms M requested a re-assessment of his EHC needs.
9. The Council decided not to re-assess B’s EHC needs and notified Ms M on 1 July 2021. Ms M appealed to the SEND Tribunal. Her appeal form asked the Tribunal to make decisions about sections B (B’s special educational needs), F (the special educational provision required to meet them) and I (the name or type of school he should attend) of B’s EHC Plan and the Council’s decision not to carry out a re-assessment of his needs. Ms M also asked the Tribunal to make recommendations about sections D and H (social care needs and provision).
10. Nevertheless, the Council accepted that changes were needed to B’s EHC Plan, including a new school place. An annual review meeting took place on 15 July 2021. The Council notified Ms M it intended to amend B’s EHC Plan on 18 August 2021. Ms M and the Council worked to agree changes to the Plan.
11. In response to an order from the Tribunal dated 17 March 2022, the Council filed a position statement saying that all areas of disagreement except placement had been resolved, and Ms M and the Council were exploring an offer of a college place for B. By the time of the Tribunal hearing, they had agreed the contents of a new Plan and B had started a bespoke education programme. Ms M’s appeal to the Tribunal concluded with a Consent Order. The Tribunal approved B’s amended EHC Plan on 27 June 2022.
12. Ms M complained about her dealings with the Council during this process and the education B missed. In particular, Ms M complained about
• the failure of SEND staff to carry out the actions she agreed with the Tribunal Manager in December 2021 (updates to the working document, contact with B’s social worker, replying to her emails); and
• the lack of response from Senior Managers regarding progress in B’s case.
13. Ms M believes this led to a delay in producing B’s amended EHCP.
14. The Council responded to Ms M’s complaint. The Council accepted there had been delays amending B’s EHC Plan following the annual review meeting on 15 July 2021. The Council said it should have issued the amended Plan within eight weeks (of deciding to amend the Plan) and apologised for the delay. The Council said the need for new assessments and the search for a new school place contributed to the delay.
15. Unhappy with the Council’s response, Ms M complained to us. She believes B could have had an amended EHC Plan six months sooner if the Council had agreed to re-assess his needs when she asked in May 2021.

Consideration

16. I understand B was out of education for approximately a year, from summer 2021 to summer 2022. Ms M and the Council disagreed about B’s special educational needs, the provision he required and the school he should attend, although they eventually resolved their disagreement. Ms M is unhappy with the time it took.
17. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s Education, Health and Care Plan. They can also appeal Council decisions not to assess or re-assess their child’s needs.
18. When a parent has exercised their right of appeal, we cannot investigate a complaint about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
19. Further, we cannot investigate a compliant about something that is a consequence of the matter the parent has appealed.
20. I cannot investigate Ms M’s complaint about the Council’s 1 July 2021 decision not to re-assess B’s special educational needs because Ms M appealed this decision to the Tribunal.
21. I cannot investigate Ms M’s complaint about the education B missed because this is a consequence of the disagreement between Ms M and the Council about Sections B, F and I of his EHC Plan and the Council’s refusal to re-assess his special educational needs, all of which Ms M appealed to the Tribunal.
22. I cannot investigate Ms M’s complaint about delays reaching an agreement about B’s education once she had appealed to the Tribunal. These are matters Ms M could have asked the Tribunal to address.
23. The Council investigated Ms M’s complaints about her dealings with a number of officers which Ms M believes led to a delay amending B’s EHC Plan. The Council upheld Ms M’s complaint about the delay securing social care advice. And while the Council acknowledged Ms M’s frustration, it did not uphold her complaints about her dealings with other officers. I am satisfied the Council responded appropriately to Ms M’s complaints. There is nothing more I can add because I cannot consider the delay Ms M complains was the result for the reasons above.

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Final decision

24. I have ended my involvement. The law does not allow me to investigate Ms M’s complaint following her appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman