Summary: Ms X complains there were failings in the way the Council dealt with her daughter’s Education Health and Care Plan (EHC Plan) and provided alternative educational provision to her while she was out of school. We will not investigate Ms X’s complaints about the Council’s action between September 2021 to March 2022. This is because the complaints are late. We will not investigate Ms X’s complaints about the content of the EHC Plan, the school setting for Y and alternative provision as Ms X has exercised her right of appeal against the decision.

The complaint

1. I have called the complainant Ms X. She complains there were failings in the way the Council dealt with her daughter Y’s Education Health and Care Plan (EHC Plan) as it did not reflect the views of the education psychologist who assessed Y. Ms X says the Council did not carry out mediation and did not help her find a suitable school for Y.
2. Ms X says Y has anxiety and depression because she has not attended school for over two years and has not been provided with alternative provision. Ms X says the Council should help her find a suitable setting and provide therapy to help Y with her anxiety.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
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 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.

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What I have and have not investigated

7. I have considered Ms X’s complaints from March 2022 when the Council issued an EHC Plan. I have not investigated Ms X’s concerns from September 2021 when Y started at secondary school. This is because Ms X’s complaints to us are late as she complained to us in June 2023. I do not consider there are grounds for us to exercise discretion to investigate now. The Council named the secondary school Y was attending in the EHC Plan and clearly thought it was suitable. It was open to Ms X to have raised her concerns with us before now when Y started to attend the school and before the Council issued the EHC Plan in March 2022.

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How I considered this complaint

8. I spoke to Ms X and considered the information she provided with her complaint. I considered the Council’s responses to Ms X’s complaints along with the relevant law and guidance.
9. 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

Legal and administrative guidance

10. 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.
11. 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.
12. 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).

What happened in this case

13. This section sets out the key events in this case and is not intended to be a detailed chronology.
14. Y has been diagnosed with Autistic Spectrum Disorder, struggles with her mental health, and has anxiety. She started at a secondary school in 2021 and found it difficult to attend school. Ms X asked the Council for an EHC Needs Assessment in November 2021. In December 2021 Ms X removed Y from the school roll and enrolled her at a different secondary school as it was hoped the smaller class sizes would help her attend.
15. The Council issued a Y with an EHC Plan in March 2022 naming Y’s current school as a suitable setting for her. The EHC Plan set out Y’s provision with a bespoke curriculum. Ms X appealed to the SEND Tribunal in May 2022 as she did not agree to the setting and provision. Ms X considered Y should attend a specialist setting.
16. In September 2022 the Council’s Governance Board agreed to consult with specialist settings for a place for Y as she had not been engaging with the school and provision made.
17. The SEND Tribunal heard Ms X’s appeal in January 2023. It was agreed Y should attend a specialist school. Y started at the specialist school in February 2023.

My assessment

18. Ms X’s daughter has special educational needs and has an EHC Plan which sets out her needs and what arrangements should be made to meet them. It names the school she will attend. We cannot direct changes to the content of the EHC Plan. Only the SEND Tribunal can do this.
19. Ms X disagreed with the school named her child’s EHC plan and exercised her right of appeal against the decision to the SEND Tribunal. As Ms X has exercised her right of appeal, we cannot investigate her complaint from March 2022 onwards.
20. As paragraph 13 explains the courts have established that if someone has lodged an appeal to the SEND Tribunal, we cannot investigate any matter that is closely linked to the matters under appeal. So, I am unable to consider Ms X’s concerns about the provision of alternative education for Y from the date Ms X’s appeal right arose in March 2022. Neither can I consider Ms X’s concerns about the actions of the Council in helping her find an alternative school for Y.

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Final decision

21. I am completing my investigation. There are no grounds for us to investigate Ms X’s complaints. This is because parts of Ms X’s complaints are late, and she has appealed to the SEND Tribunal about the content of Y’s EHC Plan, so we have no jurisdiction to investigate.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman