Summary: Mrs X complained the Council failed to review her child’s education, health and care plan properly, failed to provide the provision set out in the plan, and failed to provide alternative education when her child was out of school. She also complained about the Council’s conduct during an appeal. Mrs X said this caused her unnecessary and avoidable distress and frustration. She said the missed education and special provision had an impact on her child. We uphold some parts of Mrs X’s complaint because we find fault causing injustice. The Council will apologise and make a payment to remedy the injustice. We cannot investigate two parts of the complaint. This is because they are outside the Ombudsman’s jurisdiction.

The complaint

1. The complainant, who I refer to here as Mrs X, complained about the way the Council handled her child’s special educational needs. Specifically, she complained:
1. the annual review of her child’s education, health and care plan was not carried out as it should have been;
2. the Council failed to provide the provision set out in the education, health and care plan;
3. the Council failed to provide alternative educational provision when her child stopped attending school; and,
4. about the Council’s conduct to do with an education, health and care plan appeal at tribunal.
2. Mrs X said this caused her unnecessary and avoidable distress and frustration. She said the missed education and special provision had an impact on her child.

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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 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)
4. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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)
8. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s education, health and care plan.
9. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
10. 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.
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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What I have and have not investigated

Part a of the complaint

12. I have investigated all of part a of the complaint.

Part b of the complaint

13. Mrs X complained the Council failed to provide the provision set out in the education, health and care (EHC) plan from September 2020 to March 2023.
14. Mrs X complained to the Council about this in November 2022, and first brought her complaint to the Ombudsman in April 2023.
15. As I have said above, 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.
16. In this case, Mrs X did not give a good reason why she did not bring her complaint to the Council before November 2022. The Council investigated Mrs X’s complaint from November 2021 onwards.
17. There were some delays in the Council’s handling of Mrs X’s complaint. For this reason, I consider there are good reasons to exercise our discretion and investigate back to November 2021, as the Council did. But I find there are no good reasons to exercise our discretion and look back at events from September 2020.
18. As I set out below, we cannot investigate a lack of special educational provision where there is an ongoing appeal about the provision set out in the EHC plan. The period we cannot investigate starts from the date the appealable decision is made and given to the parents.
19. In this case, the Council issued an EHC plan in May 2022. This gave Mrs X appeal rights. Mrs X exercised these rights and appealed the EHC plan. The Tribunal process concluded in February 2023. Therefore, I cannot investigate part b of this complaint beyond May 2022.
20. For this reason, I have investigated the period from November 2021 to May 2022.

Part c of the complaint

21. Mrs X complained that the Council failed to provide alternative educational provision when her child stopped attending school. She said this was between October 2022 and March 2023.
22. As I have said below, if a child is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent’s disagreement about the special educational provision or the educational placement in the EHC plan, we cannot investigate a lack of alternative educational provision.
23. Mrs X explained the reason her child stopped attending school. I find it was directly and inextricably linked to Mrs X’s appeal of the content of the EHC plan. For this reason, I cannot investigate part c of Mrs X’s complaint.

Part d of the complaint

24. Mrs X complained about the Council’s conduct during the SEND Tribunal appeal process.
25. We cannot investigate a council’s conduct during an appeal process. This includes 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) 
26. For this reason, I have not investigated part d of Mrs X’s complaint.

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How I considered this complaint

27. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
28. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Special educational provision and alternative provision

29. The council has a duty to make sure the child receives the special educational provision set out in Section F of an education, health and care (EHC) plan (Section 42 Children and Families Act).
30. 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)
31. 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.
32. The period we cannot investigate starts from the date the appealable decision is made and given to the parents. If the parent 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.
33. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).

Education, health and care (EHC) plan reviews

34. A local authority must review an EHC plan within 12 months from the date the plan was made (meaning the date the plan was finalised). It must then review the plan annually, within 12 months of any previous review, as a minimum.
35. The child’s parent/s must be invited and given at least two weeks’ notice of the date of the meeting. The school must send any advice and information gathered to all those invited at least two weeks before the meeting.
36. The council must decide whether it proposes to keep the EHC plan as it is, amend the plan, or cease to maintain the plan within four weeks of the review meeting. It says the council must notify the child’s parent about its decision within four weeks of the review meeting.

What happened

37. Mrs X’s child, B, has an education, health and care (EHC) plan.
38. In May 2022, B’s school invited Mrs X to an annual review of B’s EHC plan. Also that month, the Council issued a new final EHC plan. Mrs X appealed that new plan.
39. The annual review was held in July. Mrs X did not attend. The school sent Mrs X annual review paperwork in August.
40. In November, Mrs X complained. In its response, the Council said the school had provided speech and language therapy and occupational therapy for B as set out in the EHC plan.
41. In March 2023, Mrs X complained again. Also that month, the Council sent Mrs X its decision following the July 2022 annual review.
42. In April, the Council replied to the complaint. The Council said it did not formally respond to the annual review within statutory timeframes because of the Tribunal process. It apologised.
43. In August, the Council sent another complaint response. It offered Mrs X £250 to remedy the injustice caused by the delays.

Analysis

Annual review

44. Mrs X complained that the annual review of her child’s education, health and care (EHC) plan was not carried out as it should have been (part a of the complaint).
45. Mrs X initially told us that the school did not invite her to the annual review within the statutory two weeks before the meeting. Since then, Mrs X has provided evidence that the school invited her to attend the review at least seven weeks in advance.
46. For this reason, I do not find the Council at fault.
47. Mrs X complained the school did not send the review paperwork to her two weeks before the review meeting.
48. The Council accepts that the school did not send this paperwork in advance of the review meeting. The school told the Council this was because Mrs X had been clear she would not be attending the review. However, the Council accepts that there was still a legal obligation to send Mrs X the paperwork two weeks in advance. The Council accepts this is fault.
49. I agree with the Council that this is fault. However, I do not consider this fault caused Mrs X injustice. This is because Mrs X did not attend the meeting, and the school sent the paperwork after the meeting.
50. Mrs X complained the Council did not notify her of its decision - whether to maintain, cease, or amend the EHC plan - within four weeks of the review meeting.
51. In a complaint response to Mrs X, the Council accepted it did not send its decision letter within four weeks of the annual review.
52. I find this is fault. The Council sent its decision letter over seven months late. I find this caused Mrs X injustice in that it caused frustration and uncertainty.
53. The Council apologised and offered Mrs X £250 to remedy the injustice caused by the delay. Mrs X did not accept this offer, therefore this injustice has not been remedied yet. I have considered the Ombudsman’s published guidance on remedies, and I am satisfied this amount is a proportionate and appropriate amount to remedy the frustration and uncertainty caused by the delay. The Council has agreed to make this payment to Mrs X.

Special educational provision

54. Mrs X complained that the Council failed to provide the provision set out in the education, health and care (EHC) plan (part b of the complaint). She said the Council failed to provide speech and language therapy and occupational therapy as set out in the EHC plan.
55. The period I have investigated is from November 2021 to May 2022, as I have outlined above.
56. The EHC plan says B will get 15 hours of speech and language therapy input over the school year. The plan says an hour of this time will be used for an assessment, 90 minutes for training key school staff, and at least two coaching visits per term for a speech and language therapist to demonstrate and model the programme school staff are to deliver each day.
57. Mrs X said B had a speech and language therapy assessment but then the school handed over this provision to teaching staff. I find school staff providing day to day speech and language therapy is in line with the EHC plan.
58. However, the Council said it can provide no evidence that speech and language therapy and occupational therapy were provided during this timeframe. It acknowledged it had trouble finding suitable providers and this contributed to the delay providing this provision.
59. I have seen the efforts the Council made to try and get speech and language therapists and occupational therapists to provide this provision. I am satisfied the Council went to significant lengths to try and source this provision but was unable to. This was outside the Council’s control and is therefore service failure.
60. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
61. I find this service failure caused B injustice because they missed out on important provision they were entitled to receive.
62. Further to this, the Council said to Mrs X in its complaint response that it could not find any evidence of missed provision during that time. The Council now acknowledges that what it said in its complaint response was wrong.
63. I find this is fault, and this caused Mrs X injustice in that it caused uncertainty.

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Agreed action

64. Within four weeks of this decision, the Council has agreed to apologise to Mrs X in writing for:
• the injustice caused by the failure to provide speech and language therapy and occupational therapy; and,
• the injustice caused by telling Mrs X in its complaint response that this provision had been provided.
65. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance when making this apology.
66. Within four weeks of this decision, the Council has agreed to make a payment to Mrs X of £2250. This is made up of:
• £2000 to remedy the impact of the missed speech and language therapy and occupational therapy B did not receive; and,
• £250 which the Council previously offered in August 2023 and Mrs X did not accept. This amount is to remedy the injustice caused by the delays in the annual review process (see paragraph 53).
67. In arriving at this figure, I have considered:
• the Ombudsman’s published guidance on remedies;
• that Mrs X said B did receive some speech and language therapy provided by school staff, but it is impossible to say how much was provided;
• the impact on B of missing such important provision; and,
• that the remedy must cover both the missed speech and language therapy and the missed occupational therapy.
68. Our guidance on remedies suggests a financial remedy for missed speech and language provision and/or occupational therapy provision of lower than our usual £900 to £2400 per term for missed educational provision. I consider, taking all factors into account, that £1000 per term is an appropriate and proportionate remedy for the level of injustice caused to B. I find there were approximately two terms of missed provision (November to May). Two terms multiplied by £1000 per term is £2000.
69. The Council should provide us with evidence it has complied with the above actions.

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Final decision

70. I have completed my investigation. I uphold parts a and b of Mrs X’s complaint because I find fault causing injustice. The Council has agreed to apologise and make a payment to Mrs X to remedy the injustice caused.
71. I cannot investigate parts c and d of this complaint. This is because they are outside the Ombudsman’s jurisdiction.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman