Summary: Mr X complained the Council failed to provide his relative, Z, with suitable education for around two years. We cannot investigate the suitability of the education provided as Mr X appealed to the Special educational needs and disabilities (SEND) Tribunal about this. We cannot investigate his complaint that the Council failed to amend Z’s Education, Health and Care (EHC) Plan for the same reason. However, the Council was at fault for taking more than a year to respond to Mr X’s complaint. This fault caused him avoidable frustration and put him to time and trouble. The Council has agreed to apologise, pay Mr X £150 and take action to improve its complaint handling.

The complaint

1. Mr X complained the Council:
1. Failed to provide a suitable education for his relative, Z, from April 2021 to May 2023;
2. Failed to amend Z’s Education, Health and Care (EHC) Plan in 2021 and 2022 despite their needs having significantly changed; and
3. Failed to properly investigate his complaints.
2. Mr X said the Council’s faults caused Z a long period of missed education and distress. He said Z has struggled to re-engage with education as a result of the learning he has missed.

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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. 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)
6. 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)
7. 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.
8. 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). 
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 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

11. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
12. I am investigating events up to mid-2021, as the Council significantly delayed responding to Mr X’s complaints in 2022. The Ombudsman can exercise discretion to look back at events earlier than twelve months since the person complained to the Ombudsman, if we decide there is a good reason.
13. In this case there is a good reason, as without the Council’s delay in complaint handling, the earlier events would have been in time for the Ombudsman to investigate.

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How I considered this complaint

14. I considered the information provided by Mr X and the Council.
15. I considered the relevant law and guidance as set out below.
16. I considered our Guidance on Remedies.
17. Mr X and the Council had the opportunity to comment on a draft decision. I considered all comments received before making a final decision.

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What I found

Law and guidance

Education, Health and Care (EHC) Plans

18. A young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out their needs and what arrangements should be made to meet them.
19. 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. 
20. We cannot direct changes to the sections about education or name a different educational setting. Only the SEND Tribunal or Council can do that.
21. Councils are responsible for making sure that arrangements specified in the EHC Plan are put in place. The Ombudsman can usually 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.
22. However we cannot look at complaints about provision not being made where the complaint is connected to, or could have been part of, the appeal to the tribunal, in the ways set out in paragraphs 5-9 of this decision statement.

Section 19 duty (alternative provision)

23. 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). We refer to this as section 19 or alternative education provision.

Education other than at school (EOTAS)

24. Section 61 of the Children and Families Act allows councils to arrange for special educational provision to be made otherwise than in a school. We refer to this as EOTAS in this decision statement.

West Sussex County Council’s complaints policy

25. This Council has a two-stage complaints process for complaints of this kind. It says it aims to respond to complaints at stage one and stage two in ten working days and up to a maximum of twenty working days.

What happened

26. Mr X’s relative, Z, is of secondary school age. They have a mental health condition and have an Education, Health and Care (EHC) Plan.

2021

27. In 2021 Z stopped attending their mainstream school, School A. Mr X said this was due to School A not being suitable for Z’s needs.
28. During an annual review that year, Mr X requested an EOTAS package for Z but the Council disagreed and decided to maintain Z’s EHC Plan. The Council informed Mr X of his right to appeal to the SEND Tribunal if he disagreed. Mr X decided not to appeal the Council’s decision to the SEND Tribunal.

2022

29. The Council carried out another annual review of Z’s EHC Plan on 25 March 2022. During this annual review, School A said Z still had not been accessing education at the school.
30. Mr X again asked the Council for an EOTAS package. He said Z needed one-to-one tutoring so they could better manage their anxiety. The Council said it had identified another college for Z to attend, School B, which could provide a “bespoke package of one-to-one learning either online or in person”. However Mr X and Z disagreed that School B would be suitable.
31. On 25 April 2022 the Council decided to maintain Z’s EHC Plan again rather than make the changes requested by Mr X and Z. Mr X appealed this decision to the SEND Tribunal as he said the Plan did not reflect Z’s needs or the provision and placement required to meet them and wanted the Plan to be changed.
32. Mr X complained to the Council on 21 June 2022. He complained about his experience with the SEND team, Z’s lack of education since 2021, and that EOTAS still had not been put in place for Z.
33. The Council responded at stage one of its complaints process almost one month later. It did not uphold Mr X’s complaint as it did not agree that Z required an EOTAS package and said their needs could be met at School B.
34. In late August Mr X asked for his complaint to be investigated at stage two. Mr X chased the Council for a response several times and it responded to say it was delayed due to a backlog of complaints.
35. In late October 2022 the Council decided it could not investigate his complaint at stage two, as it said his complaint related to matters under appeal at the SEND Tribunal and it could not respond until after the Tribunal had made its decision. It signposted Mr X to the Ombudsman if he was dissatisfied.

2023

36. The Tribunal decided in Mr X’s favour from 4 April 2023 and told the Council to put in place an EOTAS package for Z.
37. On 21 April 2023 Mr X asked if the Council could now investigate his complaint at stage two, as tribunal proceedings had ended. The Council responded that it could but said it was still dealing with a backlog of complaint investigations.
38. After chasing the Council several times for seven months without receiving a complaint response at stage two, Mr X complained to the Ombudsman in November 2023.

My findings

Suitability of education and content of EHC Plan

39. Mr X complained the Council failed to provide a suitable education for Z between April 2021 and May 2023 and failed to amend their EHC Plan despite their needs having changed. I have not investigated these complaints for the reasons set out below.
40. The Council decided not to amend Z’s EHC Plan in 2021 and told Mr X of his appeal rights. Mr X disagreed with its decision. For the reasons set out in paragraph 5 of this decision statement, I have not investigated this, as it was reasonable for Mr X to use his right of appeal to the SEND Tribunal to resolve this matter.
41. The Council then decided not to amend Z’s EHC Plan again in 2022 and gave him his appeal rights. Mr X appealed this decision to the SEND Tribunal. For the reasons set out in paragraphs 6-8 of this decision statement, I cannot investigate the suitability of Z’s education or the fact the Council did not amend their Plan, as these matters were connected to Mr X’s appeal to the Tribunal.
42. Mr X complained he should not have had to appeal to the SEND Tribunal for Z to be provided with education. He said Z should have been provided with alternative education due to the Council’s duties under Section 19 of the Education Act, as Z was a child missing school for medical reasons.
43. The Council disagreed that Z was not attending school for medical reasons, or needed alternative provision, as it decided several times that their needs could be met at either School A, or School B. Z’s non-attendance was a consequence of the disagreement between Mr X and the Council about the educational placement and special educational provision in the Plan. As a result, for the reasons set out in paragraph 7 of this decision statement, I cannot investigate this period of missed education.

Complaint 1C) Failed to properly investigate complaints

44. The Council had a maximum of twenty working days to respond to Mr X at stage one. It was broadly within this timescale and the response addressed the issues complained of. The Council was not at fault for its stage one response.
45. The Council had a maximum of twenty working days to respond to Mr X’s complaint at stage two. After Mr X chased several times, around two months later, the Council told him it could not investigate his complaint as it related to matters under appeal at the SEND Tribunal.
46. After the SEND Tribunal issued its order, Mr X asked the Council to finish its complaint investigation. Mr X chased the Council without success for this complaint response for seven months, before coming to the Ombudsman instead. We decided to investigate the complaint without a stage two response as the Council had already had ample notice of the complaint.
47. The Council was at fault for delaying investigating Mr X’s complaint because of an active tribunal appeal. Local complaint handling is a separate procedure and is not affected by proceedings at the SEND Tribunal.
48. The Council took two months to decide not to investigate Mr X’s complaint at stage two. Then after Mr X waited five months for the Tribunal to conclude, the Council failed to investigate Mr X’s complaint for a further seven months. It still had not dealt with Mr X’s complaint by the time he came to the Ombudsman.
49. The Council took more than a year to deal with Mr X’s complaint and this delay was fault. The faults above have caused Mr X considerable frustration by having to chase the complaint response repeatedly and have put him to avoidable time and trouble in coming to the Ombudsman.

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Agreed action

50. Within one month of the date of the final decision, the Council has agreed to:
1. apologise to Mr X for the injustice caused by the faults in this case; and
2. pay Mr X £150 to reflect the frustration and time and trouble he has been caused.
51. Within three months of the date of the final decision, the Council has agreed to:
1. remind complaint handling staff that there is no good reason to delay local complaint handling about education and special educational needs provision because tribunal proceedings are active, doing so avoidably delays and frustrates complainants; and
2. set out its action plan for dealing with any continuing backlog of complaints, including any progress it has made to improve its complaint handling timescales to date.
52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

53. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to apologise, make a financial payment and carry out service improvements.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman