Summary: Most of Ms X’s complaints are not within our remit because they have been appealed to the Special Educational Needs and Disability Tribunal, or they could have formed part of the appeal. There was a failure to complete the annual review process after the review meeting in July 2021 which was fault. This caused avoidable confusion, uncertainty and a delay in appeal rights. The Council will apologise and make a symbolic payment of £150.

The complaint

1. Ms X complained the Council:
1. Did not update her daughter Y’s Education Health and Care plan (EHC plan) for four years and failed to follow the correct process after annual review meetings;
2. Used an out-of-date EHC plan for transfer to secondary school resulting in inappropriate schools being consulted;
3. Refused to re-assess Y;
4. In mediation failed to accurately update her plan, using the same out-of-date plan; and
5. Named an inappropriate school and as a result Y did not go to school between July 2022 and July 2023
2. Ms X said this caused avoidable stress, extra parental caring duties and a financial loss.

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The Ombudsman’s role and powers

3. 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)
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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 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)
6. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
7. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
8. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
9. We cannot investigate anything a complainant could have raised with the tribunal at any stage of the appeal, or which the tribunal has considered on its own initiative, or which could have been a part of the tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  
10. 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)
11. 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)
12. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

13. Ms X complained to us in March 2023. This means complaints about events before March 2022 are late. However, I have investigated complaint (a) from July 2021 when Y was at the end of year five. This is to include the transfer review that should have taken place before February 2022 (see paragraph 21).
14. I have not investigated the other complaints. My reasons are:
• Complaint (c) because a decision not to re-assess Y had a right of appeal to the Special Educational Needs and Disability (SEND) tribunal. It was reasonable for her to have appealed.
• Complaints (b) and (d) because these were also matters that either were appealed or could have been part of Ms X’s appeal. The Milburn and Bradford cases in paragraphs six and nine apply so this complaint is outside our remit;
• Complaint (e) because Y could have attended School A named in Section I on the transfer EHC plan from September 2022 as this was available for her. Ms X stated in her complaint to us that the reason Y did not attend was because she considered the placement was inappropriate. Y’s non-attendance at school was therefore a consequence of the disagreement about the placement named on the transfer plan. The Milburn and PH cases set out in paragraphs five and six also apply and so these complaints are also outside our remit.

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How I considered this complaint

15. I considered the complaint to us and the Council’s complaint responses. I discussed the complaint with Ms X.
16. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

17. 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. The EHC plan is set out in sections including:
• Section B: The child or young person’s special educational needs. 

• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 

We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.

18. The council must arrange for the EHC plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.

19. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 

20. Where the 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.

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 including between primary and secondary school. This is to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments naming the secondary placement must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. (Regulation 18, SEND Regulations 2014)

What happened

22. Y has special educational needs and has had an EHC plan since 2018. She attended a mainstream primary school and the Council gave the school additional funding to secure the special educational provision in Section F of the plan.
23. Y’s primary school held an annual review meeting at the start of July 2021 when Y was at the end of year 5. Ms X attended. The minutes noted the educational provision the school had arranged and its use of funding. Y was said to be finding the curriculum more challenging as she moved through school. There were no changes to needs, outcomes or provision recommended. Ms X’s preferred secondary school at the time was noted.
24. The Council issued a final EHC plan under cover of a letter dated 10 February 2022. The plan named a specialist secondary school (School A) from September 2022 and gave Ms X her appeal rights.
25. Ms X was unhappy with the placement named on the plan and she and the Council took part in mediation.
26. The Council issued another updated final EHC plan in July 2022, again naming School A from September 2022 in Section I. The Council’s letter of 3 August gave Ms X her right of appeal to the SEND tribunal.
27. Ms X appealed to the SEND Tribunal at the end of September 2022. She appealed Sections B, F, and I (also C and G: description of health needs and health provision). She asked the tribunal to name School B.
28. Ms X did not send Y to School A. She told us this was because the placement was not suitable for Y as it was a school for children with autism, which Y does not have.
29. Ms X complained to the Council about the issues she has raised with us and other issues. The Council’s complaint response in February 2023 said it was closing Ms X’s complaint as she had appealed to the tribunal about the school placement in Y’s EHC plan.
30. Ms X complained to us in March 2023. As Y’s case was awaiting a decision from the tribunal, we closed the complaint and asked Ms X to contact us again when the tribunal had concluded.
31. In June 2023, the Council sent School A a copy of recent Educational Psychology and Speech and Language Therapy reports. School A said it considered it was no longer a suitable placement for Y because of reports from the one-to-one tutor (which the Council had arranged from May 2023) which indicated Y’s significant educational progress and she would not have an appropriate peer group at School A.
32. The Council agreed to name School B before the tribunal hearing.
33. The tribunal heard the case in July 2023. It ordered:
• School B as the placement in Section I;
• The amendments to the EHC plan that the parties had agreed as part of the working document process; and
• Changes to wording in the plan relating to needs and provision which the parties had not managed to agree.
34. Y started at School B in the middle of July 2023. Ms X referred her complaint back to us in August.

Findings

35. There was fault by the Council in complaint (a). The records show the school held an annual review meeting at the end of year five, which Ms X attended. There were no changes recommended to Y’s special educational provision, but the plan would need to be amended to reflect that she was going to need a change of placement for secondary school. The Council should therefore have issued a decision to amend the plan within four weeks of the review meeting and proposed amendments within eight weeks. It did not do so. This was not in line with the law and guidance described in paragraphs 18 to 20 and was fault. It caused avoidable confusion and a delay in appeal rights. There is not enough evidence to conclude Y lost out on any educational provision though. She continued to attend primary school receiving the SEN provision on her plan and had a secondary placement available from September 2022.
36. The Council issued Y’s transfer plan before the 15 February deadline and this named Y’s secondary school placement. This is in line with Regulation 18 of the SEND Regulations and there is no fault.

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Agreed action

37. Within one month of my final decision, the Council will:
1. Apologise;
2. Make Ms X a symbolic payment of £150; and
3. Remind officers in the SEND team of the duty to complete the annual review process following an annual review meeting and of the legal timescales set out in this statement.
38. We will require evidence of compliance with the actions in paragraph 37.

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Final decision

39. Most of Ms X’s complaints are not within our remit because they have been appealed to the Special Educational Needs and Disability tribunal, or they could have been part of the appeal. There was a failure to complete the annual review process after the review meeting in July 2021 which was fault. This caused avoidable confusion, uncertainty and a delay in appeal rights. The Council will apologise and make a symbolic payment of £150.
40. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman