Summary: Mrs X complains the Council failed to put in place suitable alternative education provision for her child, B. We cannot investigate Mrs X’s substantive complaint. Mrs X lodged appeals with the SEND Tribunal for the periods in question. Whether B received suitable education provision is therefore inextricably linked to matters considered at appeal. There are other parts of Mrs X’s complaint that we can investigate. We have not found the Council at fault, or have not investigated these matters. We explain why in our statement.

The complaint

1. Mrs X complains the Council delayed in arranging alternative provision for her son, B. She also complains the alternative provision put in place towards the end of the 2021/22 academic year was not full time or suitable for B’s needs.
2. Mrs X complains the Council failed to arrange suitable alternative provision for the 2022/23 academic year.
3. Mrs X also complains the Council threatened to follow formal absence procedures, despite having accepted B was not attending school due to illness.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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 cannot 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)
7. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

8. I considered information Mrs X provided about the complaint.
9. I considered information the Council provided about the complaint.
10. Both Mrs X and the Council were able to comment on a draft version of this decision. I considered any comments I received before making a final decision.
11. 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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Relevant legislation, guidance and policy

Education, Health and Care (EHC) Plans

12. 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.
13. The EHC plan is set out in sections which include:
• 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.
14. We cannot direct changes to the sections about education, or name a different school. Only the SEND Tribunal can do this.
15. 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.

Appeal rights

16. 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. Parents must consider mediation before deciding to appeal. 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.

General section 19 (S19) duty

17. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19, S19, or alternative education provision.
18. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

The Hillingdon Judgment

19. 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).

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What I found

Key events

20. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the analysis section of this decision statement.
21. Mrs X’s child, B, has an EHC Plan, setting out his special educational needs and what provision should be put in place to meet them.
22. In September 2021, the Council issued an amended Final EHC Plan for B. The EHC Plan named School J as the setting.
23. In October 2021, Mrs X says she told the Council B was too unwell to attend school. Mrs X also appealed to the SEND Tribunal about Section F of B’s EHC Plan.
24. The Council previously told the Ombudsman it had accepted it owed B a S19 duty in January 2022. It said B had been unable to attend School J due to anxiety caused by a flare in one of his medical conditions.
25. Mrs X says the Council put alternative education provision in place in February 2022. Following this, the Council and Mrs X exchanged frequent correspondence about the alternative provision provided and whether it was suitable for B’s needs.
26. In April 2022, Mrs X says she told the Council the alternative provision arrangements in place posed a possible risk to B and his sibling, C. Mrs X says her concerns were realised in May 2022, following a physical altercation between B and C in front of an external education provider. She says there were also other safeguarding incidents in the home, due to the education arrangements put in place for B.
27. On 10 May 2022, the SEND Tribunal held the appeal hearing about B’s EHC Plan.
28. On 31 May 2022, the SEND Tribunal decided the appeal, resulting in the Council issuing a new final amended EHC Plan. The EHC Plan again named School J as the setting. Section F of this EHC Plan stated:

“B will have a graduated transition to return to full time mainstream schooling with continued access to alternative provision until his transition to school is complete.”

29. In June 2022, the Council issued the amended Final EHC Plan. The Council wrote to Mrs X to say the alternative provision specified in the plan would be delivered on the school site. Mrs X says she expressed concerns this arrangement was discriminatory and would cause B harm.
30. Mrs X says the alternative provision arrangements in place up to the end of the 2021/22 academic year did not continue at the start of the new academic year, in September 2022. The Council says Mrs X wrote to the Council to make a claim of disability discrimination, regarding its decision about where B’s alternative provision should be delivered. Mrs X told me this was not a claim, but a pre-action letter. The Council says it treated this as a formal complaint.
31. In July 2022, the Council confirmed its intention to hold a review of the provision in B’s EHC Plan. It held this review in September 2022. Following the review, the Council wrote to Mrs X, confirming its decision not to amend the recently issued EHC Plan. Mrs X received a right of appeal against this decision.
32. Mrs X says she provided medical evidence to the Council in October and November 2022, to support her view the Council should provide B with full-time education provision outside of a school setting. On 7 November 2022, Mrs X made an appeal to the SEND Tribunal about Sections B, F and I of the EHC Plan. On the 9 November 2022, Mrs X made a complaint to the Council.
33. In late November 2022, the Council responded to Mrs X’s complaint. Mrs X escalated her complaint to the next stage of the Council’s complaints procedure, as she was unhappy with the response.
34. The Council told Mrs X it was arranging a meeting with B’s medical practitioner, to better understand the evidence provided. The Council says it received the medical practitioner’s written response on the 8 December 2022. On the 9 December 2022, the Council says it received notice that Mrs X had appealed its decision not to amend the EHC Plan.
35. The Council issued its final complaint response to Mrs X on the 24 March 2023.
36. In April 2023, Mrs X brought her complaint to the Ombudsman.
37. In July 2023, the SEND Tribunal heard Mrs X’s appeal against the EHC Plan issued in June 2022. In its judgement setting out the amendments to the plan, the Tribunal decided School J was no longer a suitable setting for B. It also specified a package of Education Otherwise than at School (EOTAS) be put in place over 38 weeks of the year, to be delivered in an environment B could access, with some community engagement.

Analysis

Alternative provision

38. Mrs X’s complaint is about the alternative provision the Council put in place after she told the Council that B was too unwell to attend school, in October 2021. Mrs X says the Council delayed putting arrangements in place. She also says the provision the Council later arranged was not suitable for B’s needs and aptitude, as it was not full-time education.
39. As set out above, the Council issued an EHC Plan on 17 September 2021, affording Mrs X a right of appeal to the SEND Tribunal over the content of this plan. Mrs X exercised this right of appeal in October 2021, challenging the wording of Section F of the plan. The SEND Tribunal heard the appeal in May 2022 and the Council issued an amended final EHC Plan on 21 June 2022.
40. The Council has previously told the Ombudsman it accepted a S19 duty towards B in January 2022, during the period of appeal. B was unable to attend school due to medical conditions related to his special educational needs. For the reasons set out in paragraph 19, I cannot investigate the alternative education provision the Council put in place, from the point an appeal right arose to when the appeal was heard. While Mrs X’s appeal did not seek a change in the setting named in B’s EHC Plan, an appeal made against Section F is seeking changes to the education provision already in place. The question of whether B received a suitable education during this time therefore becomes inextricably linked with matters the SEND Tribunal had been asked to consider. I believe this brings into scope matters the courts have said we cannot investigate.
41. The Council issued an amended final EHC Plan in June 2022, following the SEND Tribunal hearing in May 2022. The Council proposed to deliver the alternative provision, specified in Section F of the EHC Plan, on the school site. The Council’s view was that delivering the provision on the school site was conducive to helping B transition back into the school setting named in his plan.
42. Mrs X believed the Council’s proposed approach was potentially discriminatory to B. She wanted the Council to continue to deliver the alternative provision in an offsite setting from September 2022. This disagreement led to the Council holding an emergency review of B’s EHC Plan, with B not receiving education provision at this time. Following the emergency review, the Council issued a decision to maintain the EHC Plan, thereby reaffirming its approach. This provided Mrs X with a right of appeal against that decision. Mrs X exercised this right of appeal.
43. Again, I believe I cannot investigate a complaint about the education provision B received from the point an appeal right arose, in September 2022, to the point the appeal was decided, in mid-2023. I believe such a complaint would be inextricably linked with matters the SEND Tribunal considered and decided.
44. The period between the Council issuing the amended final EHC Plan, in June 2022, and deciding to maintain the EHC Plan, in late September 2022, would be within the Ombudsman’s jurisdiction to consider. This is because there was no corresponding right of appeal at that point.
45. Based on the evidence I have seen, the disagreement at that time was about which approach would be in B’s best interests. In such circumstances, we would expect the Council to consider how to respond to the fact B was not attending school and whether it then owed a Section 19 duty.
46. Broadly, this is what the Council did. It conducted an emergency review of B’s EHC Plan, then issued a decision to maintain the plan, re-affirming that it believed its proposed approach was correct. This decision provided Mrs X with a right of appeal, which she exercised. This appeal resulted in changes to both special educational provision and the setting, as set out in paragraph 37, with B’s education no longer being provided at school.
47. I would consider the Council’s actions during this period to be compliant with the framework set out in the SEN Code of Practice for reviewing provision and resolving disputes. I have not therefore found the Council at fault for its actions during this period.

Absence enforcement

48. Mrs X complained the Council threatened to take enforcement proceedings for B’s absences in the 2022/23 academic year, despite being aware School J had recorded him as being unwell. In its final complaint response, the Council said this related to the Council’s decision not to accept a S19 duty from September 2022. It said this was linked to the matters under appeal, as there had been no agreement about where B’s education should take place. It said it had not issued formal proceedings. It accepted that correspondence the Council sent might have appeared more combative then intended, due to the strained relationship between Mrs X and the Council. It apologised for any distress this had caused.
49. Having considered the context of this part of Mrs X’s complaint, I believe I cannot investigate the Council’s actions, or proposed actions, about enforcement of non-attendance. This is because such actions were directly linked to decisions about where B should be educated, which is a matter considered by the SEND Tribunal.
50. The Council’s general conduct towards Mrs X could potentially be separated from decisions the SEND Tribunal considered. However, I do not believe it would be proportionate to investigate this as a standalone issue. The Council has already accepted its correspondence may have been more combative than intended, and offered an apology for this. I consider the Council’s apology to be appropriate and believe I could not achieve more than this for Mrs X.

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Final decision

51. I have ended my investigation of this complaint. This is because Mrs X lodged an appeal to the SEND Tribunal and the substantive complaint is inextricably linked to matters considered at appeal.

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Investigator's decision on behalf of the Ombudsman