Summary: Mrs X complained the Council failed to provide her child, Y, with suitable education and the content of her Education, Health, and Care plan between September 2021 and September 2022. The Council was at fault for failing to secure the full content of Y’s plan to her between April and July 2022. The Council will pay Mrs X £2,000 to recognise Y’s lost provision.

The complaint

1. Mrs X complained the Council failed to provide her child, Y, with suitable education and the content of her Education, Health, and Care (EHC) plan between September 2021 and September 2022.
2. Mrs X says the matter caused Y to miss out on education and the specialist educational provision specified in her EHC plan at a key stage of her education. Mrs X says she was caused frustration and distress in resolving the matter.

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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. 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.
5. 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)
6. 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 was engaged 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).
7. 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)
8. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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)
10. 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 have and have not investigated

11. Mrs X complained about Y’s provision between September 2021 and September 2022. Mrs X told me she appealed to the SEND Tribunal about the school named in Y’s September 2021 EHC plan, as she did not think it was suitable and did not send Y to that school. I have not investigated the period between when Mrs X’s right of appeal arose in September 2021 to the date the final EHC plan was issued in April 2022. This is because the provision is inextricably linked to Mrs X appeal about the named school. We cannot investigate something inextricably linked to matters considered by the SEND tribunal, as explained at point 6 of this decision.
12. I have investigated matters between April and September 2022.

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How I considered this complaint

13. I spoke with Mrs X and considered information she provided.
14. I considered information provided by the Council.
15. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Background information

Education, Health and Care plans

16. 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. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
17. 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. 
18. 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.
19. 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)
20. The Ombudsman does recognise 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 does consider 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.

The Council’s complaints policy

21. The Council has a two stage complaints policy. Both the stage one and stage two complaints procedure have a deadline of twenty working days from receiving the stage one or stage two request. In exceptional circumstances the Council may take longer, but it will inform the complainant of the reasons why and tell them when they should expect a response.

Background

22. Y is a child with additional educational and social needs. In early September 2021 Y was scheduled to start year ten. The Council issued Y’s first final Education, Health, and Care (EHC) plan that month. It named “a local mainstream secondary school or academy” under section I. In October 2021, Y was placed on roll at mainstream school F.
23. Mrs X disagreed with the Council’s named school. She informed the Council in October 2021 of her view that Y required a specialist provision. The Council disagreed and said school F was suitable.
24. Mrs X then appealed to the SEND Tribunal in December 2021. Mrs X requested a special school, school Z, be named in the plan.
25. In February 2022 the tribunal accepted the appeal and wrote to the Council informing it.

What happened

26. In March 2022, the Council considered Mrs Y’s appeal to the SEND tribunal and conceded before a hearing was held. It agreed to name school Z in section I of the EHC plan. The plan included staff interventions such as mentoring, small high nurture provision, online safety sessions, support for Y’s mental health, peer development sessions and additional sessions for numeracy and literacy skills. It sent the final amended EHC plan to Mrs X in early April 2022 which named school Z to start from September 2022. Mrs X says she contacted school Z and Y attended “settling in” days for a few hours a week starting in May 2022.
27. In late May 2022 School Z contacted the Council and said Y was only attending two days per week. It said Y needed to be at school full time and asked whether the Council would bring the start date forward.
28. The Council considered the matter and sent an amended decision notice in mid-June 2022 naming school Z to start immediately. Mrs X says Y attended school for two days a week between mid-June and the end of term July 2022.
29. Mrs X then complained to the Council about Y’s education and the EHC plan.
30. The Council responded at stage one of its complaints process in December 2022. The Council said:
• it agreed Y should have started at school Z from March 2022. It said naming school Z to start in September 2022 was an error and should not have happened;
• it acted in June 2022 to name school Z for an immediate start. It said Y should have been able to attend full time from that date; and
• it apologised for the error and said it would pay Mrs X £1,000 in recognition of Y’s lost education between March 2022 and June 2022.
31. Mrs X remained dissatisfied with the Council’s response and requested a stage two response in December 2022.
32. The Council responded in April 2023. The Council:
• repeated information from its stage one response including that it should have named school Z sooner;
• increased the payment to £1,600 in recognition of Y’s lost provision between March 2022 and June 2022; and
• said it would learn from the issues raised and ensured it continued to learn and develop the service.
33. Mrs X remained dissatisfied with the Council’s response and brought her complaint to us. She says Y started year eleven in September 2022 and attended full time at school Z.

Analysis

Provision April 2022 to June 2022

34. The Council conceded in March 2022 before the SEND tribunal to name school Z in Y’s plan. It issued an amended EHC plan in April 2022, but named school Z to start from September 2022. The EHC plan is in effect from the date it is issued. The Council had a duty to ensure the specialist educational provision specified in Y’s plan was secured for her from April 2022. The Council did not do so until June which was fault. The Council’s fault meant Y did not receive all the provision set out in her EHC plan between April and June 2022, except for some introduction sessions twice per week from May 2022.
35. The Council accepted this fault in both its stage one and stage two complaint responses. It told Mrs X it would pay her £1,600 in recognition of the lost provision and exercised its discretion to apply the payment from the date it conceded at tribunal in March 2022. This is an appropriate remedy in line with our Guidance on Remedies.

Provision June 2022 to July 2022

36. The Council sent an EHC plan amendment notice in June 2022 naming school Z in Y’s EHC plan for immediate start. The Council told Mrs X in its stage one response that Y should have been able to start school full-time from June 2022. However, Mrs X says Y was only able to attend two days per week.
37. The Council should have checked the special educational provision was in place after it issued Y’s amended EHC plan amendment notice in June 2022, and it should have investigated when Mrs X complained that provision was not in place. I requested details of how much education Y received during this period, and for evidence of Y’s attendance record. However, the Council was unable to provide this. On balance, the Council did not check to ensure the provision was in place and that was fault.
38. The fault caused Y to miss both the education to which she was entitled and some of the provision in her EHC plan for six weeks at a key stage of her education.

Complaints process

39. Mrs X says she complained at stage two of the Council’s process in December 2022. The Council responded in April 2023. This was several months after the request was made. This is not in line with the Council’s policy and is fault. The fault caused Mrs Y frustration and uncertainty about whether the Council was acting to resolve the concerns she raised.

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Agreed action

40. Within one month of the final decision, the Council agreed to:
• write to Mrs X and apologise for the frustration and uncertainty caused to her because of the delay in responding to her stage two complaint; and
• pay Mrs X £2,000 in recognition of Y’s lost education and EHC provision. This is made up of the original £1,600 offered by the Council for the period March 2022 to mid-June 2022, and a further £400 for the lost provision between mid-June to mid-July 2022 considering Y’s needs, school holidays, that Y was at a key stage of her education and that Y attended two days per week during the final weeks of summer term. This is in line with our Guidance on Remedies. Mrs X can use this for Y’s educational benefit as she sees fit.
41. Since Mrs X complained to us, we found fault and made a service recommendation to the Council in another complaint. In that case the Council agreed to ‘remind relevant staff of the Council’s duty to ensure special educational provision set out in a child's Education, Health and Care plan is being provided where it has delegated that provision to another body, such as a school.’ Therefore, I have not made the same recommendation as the Council has already made service improvements.
42. The Council will provide us with evidence it has complied with the above actions.

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Final decision

43. I completed my investigation. I found fault and made recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman