Summary: Mrs X complained the Council failed to provide her child, Y, with suitable education and the content of their Education, Health and Care Plan. She also complained about the Council’s communication. We ended the investigation about delivery of Y’s Plan between September 2022 and January 2023 because it is unlikely we would find fault causing significant injustice. We also did not investigate a later period because Mrs X had a right of appeal to the SEND Tribunal. There was fault in the Council’s communication, but the Council has already apologised, which is an appropriate remedy.

The complaint

1. Mrs X complained:
1. the Council failed to provide her child, Y, with suitable education and the content of their Education, Health and Care Plan between September 2022 and July 2023; and
2. that the Council’s communication was poor.
2. Mrs X says the matter caused her frustration and caused Y to miss the education to which they were entitled.

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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. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome.

5. (Local Government Act 1974, section 24A(6), as amended, section 34(B))We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. 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)
9. 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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How I considered this complaint

10. I considered information provided by Mrs X.
11. I considered information provided by the Council in response to our enquiries.
12. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments received before making a final decision.

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What I found

Law and guidance

Education, Health and Care (EHC) plans

13. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this.
14. The EHC Plan is set out in sections which includes:

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

15. The Council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the Council asks another organisation to make the provision and that organisation fails to do so, the Council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)

SEND Tribunal appeal rights

16. There is a right of appeal to the Tribunal against, but not limited to:

• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan; and
• a decision not to amend an EHC Plan following a review or reassessment.

17. 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)
18. 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).

What happened

19. The information below is not everything that happened. It is a summary of key points.
20. Mrs X has a child, Y, who has a diagnosis of Autism and other SEND needs. In 2021, Y moved to live in the Council’s area. Their EHC Plan transferred to this Council. Y’s EHC Plan named a mainstream school, school A, in section I. In summer 2022, school A held a review meeting regarding Y’s EHC Plan.
21. In September 2022, Y moved into year one at school A.
22. Y’s EHC Plan at the time said they would receive support delivered by the teaching staff at the school. Section F included, but was not limited to:
1. wellbeing check-ins and clear, consistent routines;
2. emotional literacy sessions;
3. daily supervised work with a group of peers; and
4. a personalised curriculum.
23. Mrs X says Y immediately began to struggle at school A. In late September 2022, the Council’s Autism Team completed an assessment of Y’s needs and made recommendations about how school A should support Y to enable them to engage in the provision available.

October 2022 to January 2023

24. In early October 2022, school A held an early annual review meeting regarding Y’s EHC Plan due to continued concerns about Y’s presentation and their ability to engage with the provision.
25. In mid-October 2022 the Council finalised Y’s EHC Plan following the summer 2022 review. The Plan named school A in section I. It sent a copy to Mrs X outlining her right of appeal to the SEND Tribunal about its content. The updated Plan included similar provision to the old Plan to be delivered by school A. Mrs X did not use her appeal rights.
26. In early November 2022, school A sent the Council the review EHC paperwork from the October 2022 meeting and said it could not meet Y’s needs. School A asked the Council to name a different placement. School A sent a further email the following week and said Y was at risk of exclusion. Two days later, Y was excluded from school A for two days. Mrs X also wrote to the Council and said Y required a specialist placement and Y was at risk of exclusion.
27. The Council contacted school A. School A told the Council again that it could not meet Y’s needs, and this resulted in the two-day fixed term exclusion.
28. The Council wrote to Mrs X and told her it would contact special schools to find a placement for Y.
29. School A held a reintegration meeting for Y. It sent the Council a support plan for Y, but said Y was at risk of permanent exclusion. School A said Y’s presentation included heightened anxiety in school and said Y was unable to engage in education. It said there was a decline in Y’s physical and mental health.
30. Y received two further fixed-term exclusions in November 2022. As a result, Y’s school implemented a part-time timetable for Y over three days per week and informed the Council. The plan to return to full time education was for Y to move to a new specialist setting. Y received 2:1 teaching assistant (TA) support delivered separately to their peers.
31. The Council sent Mrs X a copy of Y’s draft EHC Plan for her comments. It informed her it agreed to find a special school for Y and about consultations it had made.

January 2023 onwards

32. In early January 2023 the Council issued an amended final EHC Plan for Y following the review in October 2022. The Plan named school A in section I, as well as a “type” of placement, a specialist school, which Y would attend once a special school was identified. The Council wrote to Mrs X and informed her of her right to appeal the decision at the SEND Tribunal. Mrs X did not use her appeal rights.
33. The Council continued to search for a specialist school placement for Y.
34. Between January 2023 and early February 2023, the Council communicated with Mrs X about actions it was taking.
35. In early March 2023, Mrs X wrote to the Council and said she had received no updates about progress the Council had made. The Council responded four days later and updated Mrs X. It said it would update Mrs X when it had made progress.
36. In mid-March 2023, Mrs X wrote a formal complaint to the Council. Mrs X told the Council:
• it had failed to deliver the content of Y’s EHC Plan to them since September 2022;
• the content of Y’s Plan was insufficient;
• school A was unsuitable and could not meet Y’s needs;
• Y required a specialist school placement; and
• the Council’s communication with her about Y’s education was poor.
37. The Council responded in late April 2023. It told Mrs X it partially upheld her complaint and said:
• it agreed Y required a specialist school placement;
• it had issued a final EHC Plan and informed her of her right to appeal the content of the Plan to the SEND Tribunal;
• it had consulted with 17 special schools to try and find a placement for Y;
• it was sorry it had been unable to find a placement for Y;
• it had frequently provided Mrs X with updates and most responses were given within five working days; and
• it would organise a meeting to discuss next steps.
38. Mrs X was dissatisfied with the Council’s response and asked for her complaint to be considered at stage two of the Council’s process.
39. School A held a further annual review meeting in May 2023.
40. Following the review, the Council told Mrs X it had decided to name a special school, school J, in section I of Y’s EHC plan. However, several days later the Council wrote to Mrs X and told her it had made an error and said it would not name school J. It apologised for the error.
41. The Council responded at stage two of its complaints process in late June 2023. It told Mrs X:
• it had tried to find a specialist school placement for Y and found school B, but Mrs X had disagreed school B was suitable;
• it agreed there was a slight delay in November 2022 in progressing the Council’s decision whether to find a specialist school for Y; and
• it had maintained communication with Mrs X and had provided updates as appropriate, but sometimes some points of Mrs X’s emails were not responded to. The Council apologised for any points that were missed.
42. In late July 2023 the Council sent Mrs X an amended final EHC Plan for Y. The Plan named a new special school, school C, in section I, and additional details in sections B, F, and G.
43. Mrs X remained dissatisfied with the Council’s response and brought her complaint to us.

Analysis

Delivery of Y’s EHC Plan between September 2022 and mid-October 2022

44. Y transitioned from reception to year one at school A in September 2022. The Council made the provision in Y’s EHC Plan and education available to them through the school.
45. The evidence shows Y struggled with the transition from reception to year one. In response, the Council’s Autism Team completed an assessment of Y’s needs and made recommendations about how School A should support Y. The Council took appropriate action to support Y to engage in the provision in their EHC Plan. Based on the information available, the Council acted as we would expect. Therefore, further investigation is unlikely to identify fault causing a significant injustice for this period or achieve a different outcome, and I have not investigated these matters further.

Y’s Education and EHC Plan – mid-October 2022 to January 2023

46. The Council completed a review of Y’s EHC Plan in summer 2022 and sent Mrs X a copy of Y’s final EHC Plan in mid-October 2022. The Council informed Mrs X of her right to appeal the content of the Plan to the SEND Tribunal.
47. While Mrs X had a right of appeal to the SEND Tribunal about the content of Y’s EHC Plan, including the named school, the Council told Mrs X it would consult with special schools for Y. Therefore, Mrs X had a reasonable expectation that the Council had accepted school A was not suitable for Y and it was acting to resolve the matter quickly. Therefore, I have decided it was reasonable she did not appeal to the SEND Tribunal at that time. I therefore exercised discretion and considered the Council’s delivery of Y’s EHC Plan for this period.
48. The Council initially secured the provision in Y’s EHC Plan and education through school A. School A told the Council in November 2022 that it could not meet Y’s needs and Y was unable to access the provision in their Plan. The Council decided Y needed a specialist placement and began looking for one. In the interim, school A provided the Council a support plan, including 2:1 TA support, and part-time timetable for Y. Although Y was not able to access all the provision in their Plan, the evidence shows the Council took appropriate action to ensure school A was supporting Y and attempting to reintegrate Y while it sought a new school placement. Based on the information available, the Council acted as we would expect. Therefore, I have not considered these matters further as further investigation is unlikely to identify fault causing a significant injustice for this period or achieve a different outcome.

Y’s Education and EHC Plan – January 2023 to July 2023

49. The Council issued another final EHC Plan for Y in January 2023 and told Mrs X of her appeal rights to the SEND Tribunal and informed her about mediation and support services available to her. The Plan named school A, and a “type” of placement (special) once a place was found. It was reasonable for Mrs X to appeal the named school in Y’s EHC Plan to the SEND Tribunal because Mrs X believed school A was unsuitable to meet Y’s needs and was dissatisfied with the Council’s progress in finding a special school for Y since the previous amended final Plan in October 2022. In addition, Mrs X later raised concerns about the content of the Plan, which could have been included in any appeal to the Tribunal.
50. Consequently, I have not investigated how the Council delivered the content of Y’s January 2023 Plan to them in line with the legislation as set out in paragraphs 6 and 17 above.

Communication with Mrs X

51. Mrs X complained about the Council’s communication with her about Y’s education and its progress finding a special school for Y. The records show the Council generally kept Mrs X informed, although this may have not been as frequently as Mrs X would have liked.
52. The record shows between February and March 2023 the Council sent no update to Mrs X for approximately five weeks. However, once Mrs X contacted the Council, the Council sent an updated response. On balance, I do not consider this caused Mrs X a significant injustice. This is because the Council provided an update within a matter of days once Mrs X requested the information.
53. The Council told Mrs X it would name school J in Y’s EHC plan but withdrew the offer several days later. This raised Mrs X’s expectations that a resolution was found and caused her additional frustration and distress. However, the Council acknowledged the disappointment this caused and apologised. This was appropriate to remedy any injustice caused by the fault.
54. The Council accepted fault in its stage two response to Mrs X for not responding to all the points in her emails. The Council apologised, and this is sufficient to remedy any injustice caused by any miscommunication. The significant part of Mrs X’s frustration is, however, a consequence of the Council naming school A, and not naming a special school in part I of Y’s January 2023 EHC Plan which is something Mrs X could have appealed to the Tribunal.

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Final decision

55. I ended my investigation. I found some fault, and the Council has already remedied the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman