Summary: Ms X complained the Council failed to provide suitable education or the provision set out in her two children’s, Child Y and Child Z’s Education, Health and Care Plans. Ms X could have complained to us sooner and there are no good reasons we should investigate this late complaint. We cannot investigate a complaint where someone has appealed to the tribunal about the same matter. The Council has already offered a suitable financial remedy for Child Y and Child Z’s lost provision and Ms X’s time and trouble which remedies the injustice caused so we have ended this investigation.

The complaint

1. Ms X complained the Council failed to provide suitable education or the provisions set out in her two children’s, Child Y and Child Z’s Education, Health and Care (EHC) Plans between late 2019 and September 2022. She said Child Y and Child Z missed out on education and provision which they were entitled to and impacted on their mental health. Ms X said it also caused her distress, a financial burden and an impact on her mental health.

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The Ombudsman’s role and powers

2. 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).
3. 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)
4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide we could not add to any previous investigation by the organisation (Local Government Act 1974, section 24A(6), as amended, section 34(B))

How I considered this complaint

5. I considered the information Ms X provided about her complaint, spoke to her on the telephone, considered the information the Council provided, considered relevant law and guidance and our guidance on remedies, published on our website.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

EHC Plans

7. A child 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. Section F specifies the special educational provision needed by the child and Section I the name and/or type of school. 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.

Alternative Provision

8. 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)

What happened

9. Child Y and Child Z live with their family and both children have special educational needs. Both Child Y and Child Z have an Education, Health and Care (EHC) Plan. Child Y and Child Z had a place at a special needs school, School 1.
10. Child Y and Child Z’s mother, Ms X, had concerns from 2019 about Child Y and Child Z’s lost provision set out in their EHC Plans and safeguarding concerns at School 1 which she raised with the Council multiple times.
11. In late April 2021 Ms X made a formal complaint to the Council about failures to secure provision set out in Child Y and Child Z’s EHC Plans and safeguarding concerns at School 1. The Council responded in June 2021 and agreed to set up an annual review meeting. In July 2021 the Council held annual review meetings about Child Y and Child Z. In late September 2021 following the annual review meetings the Council issued final amended EHC Plans for Child Y and Child Z and named School 1 in section I for both children. Ms X was unhappy with School 1 named in Section I of Child Y and Child Z’s EHC Plans and appealed to the special educational needs (SEND) tribunal.
12. Ms X had continued concerns about the special needs provision Child Y and Child Z received at School 1 and she had safeguarding concerns about School 1. In mid-January 2022 Ms X withdrew Child Y and Child Z from School 1. The same day the Council received a positive consultation response from another special school, School 2 for Child Y and Child Z to attend in September 2022. Child Y and Child Z remained on roll at School 1 and the Council asked School 1 to provide work for Child Y and Child Z. The Council did not arrange alternative provision for them between January 2022 and July 2022.
13. Ms X made a formal complaint to the Council in late April 2023 about Child Y and Child Z’s lost education and EHC Plan provision and safeguarding concerns at School 1. The Council responded in mid-June 2023 and acknowledged Child Z and Child Y did not attend School 1 between September 2021 and July 2022 and alternative provision was not provided and apologised. In acknowledgement of the time Child Y and Child Z were not provided with provision in their EHC Plans the Council offered a remedy payment of £125 per week for 39 weeks (academic year September 2021-July 2022) which is a total of £4,875 for Child Y and £4,875 for Child Z and a symbolic payment of £500 for Ms X’s time and trouble. A total payment of £10,250.
14. Ms X complained to us in July 2023. Ms X said she did not complain earlier because of continuing conversations with the Council and she expected Child Y and Child Z would have been offered a place at School 2 sooner.

My findings

15. Late complaints are when someone takes more than 12 months to complain to the Ombudsman about something the Council has done.
16. Ms X had concerns about Child Y and Child Z’s lost provision set out in their EHC Plans and safeguarding concerns at School 1 from 2019. Ms X said she complained to the Council and it did not respond fully to her concerns until the annual review in July 2021. I consider it was reasonable for her to make a formal complaint about her concerns at the time, when she first became aware of the matter. I have not exercised discretion to investigate from 2019 and have investigated from the annual review in July 2021.
17. Following the annual review the Council issued Child Y and Child Z’s final amended EHC Plan in late September 2021 and Ms X used her right of appeal to the SEND tribunal. Child Y and Child Z’s EHC Plans named School 1 as their placement and School 1 could provide Child Y and Child Z with provision. It was Ms X’s decision to withdraw Child Y and Child Z from School 1 and the Council requested work from School 1 but did not provide alternative provision.
18. The courts have established that if someone has appealed to the SEND 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)
19. As Ms X appealed the Council’s decision, the law says we cannot look at either the decision (to name School 1) or the consequences of that decision. We can look at matters that are not connected to an appeal, or are not a consequence of an appeal, for example failure to secure alternative education under s19 of the Act when the reason the child or young person was not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been part of an appeal to the tribunal.
20. As Child Y and Child Z had existing EHC Plans, the Council still had to provide them with a suitable education under s42 of the Education Act, or to make alternative arrangements to provide them with education under s19 of that Act.
21. In response to Ms X’s stage 1 complaint the Council apologised and offered Ms X a payment of £4,875 for Child Y and £4,875 for Child Z and a symbolic payment of £500 for Ms X’s time and trouble. This is in line with our guidance on remedies and was an appropriate remedy for the injustice caused.
22. For the reasons set out above I have ended my investigation.

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Final decision

23. I have ended my investigation because Ms X could have complained to us sooner, we cannot investigate matters the tribunal has, or could have considered, and we could not add to a previous investigation by the Council which offered a financial remedy which remedied the injustice caused.

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Investigator's decision on behalf of the Ombudsman