Summary: Miss X complains about the handling of her child, Child Y’s education since July 2021. Part of Miss X’s complaint is late and we cannot investigate concerns about a lack of special educational provision, or alternative educational provision when appeal rights are available. The Council took longer than it should to notify Miss X of its decision to maintain Child Y’s Education, Health and Care (EHC) plan. The Council has agreed to apologise and make a remedy payment to Miss X for the injustice caused by this delay.

The complaint

1. Miss X complains about the Council’s handling of her child, Child Y’s education since July 2021. She complains the Council has failed to:

• identify suitable education provision for Child Y;
• meet its duty to provide suitable alternative education provision for Child Y under section 19 of the Education Act from May 2022 onwards; and,
• ensure delivery of the Special Educational Needs (SEN) provision specified in Child Y’s Education, Health and Care (EHC) plan.

Miss X says this has caused Child Y and their family significant emotional, physical, mental and financial distress.

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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. 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)
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. 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. 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

7. Miss X asked us to investigate the Council’s handling of Child Y’s education from July 2021 onwards. Miss X previously complained to the Council about this and received its final response in January 2022.
8. I am not satisfied there are good reasons why Miss X did not bring her complaints about the Council’s handling to us within 12 months of receiving the Council’s final response. There also appears insufficient justification for the delay in bringing any concerns Miss X continued to have about the Council’s handling from early 2022 to November 2022.
9. My investigation into Miss X’s complaints is therefore limited to examining the Councils handling from November 2022 to November 2023, when she submitted her complaint to us.

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How I considered this complaint

10. I have spoken to Miss X and considered the information she has provided in support of her concerns.
11. I have considered the information the Council has provided in response to my enquiries.
12. Miss 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

Relevant guidance

13. A child or young person with special educational needs 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 SEND Tribunal or council can do this.
14. The EHC Plan is set out in sections which include: 

• Section B: 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 educational placement 

15. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review. Interim reviews can also be held where necessary.
16. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
17. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the SEND Tribunal.
18. There is a right of appeal to the SEND Tribunal against:

• a decision not to carry out an EHC needs assessment or reassessment.
• a decision not to issue an EHC plan following an assessment.
• 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;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

19. 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)
20. 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.
21. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
22. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, delays in the process before an appeal right started.

Background

23. This background covers key events, including those outside the scope of my investigation, for context. It does not cover everything that has happened.
24. Child Y has a diagnosis of Autistic Spectrum Condition (ASC). The Council issued its first Education, Health and Care EHC plan for Child Y in February 2020. School B, which is a mainstream school, was named in this plan.
25. Child Y received a further diagnosis of ASC with a Pathological Demand Avoidance (PDA) profile in November 2021.
26. The Council subsequently agreed to Miss X’s request to reassess Child Y as their needs were no longer accurately reflected in their EHC plan. The Council formally began the reassessment process on 3 February 2022.
27. Miss X stopped sending Child Y to School B in early May 2022 following three incidents which led to short-term suspensions and Child Y suffering significant mental health crises. School B sent work home for Child Y to complete while absent and the Council continued to provide funding to School B to pay for the alternative education provision Miss X sourced for Child Y.
28. The Council issued the final EHC plan (from the February reassessment) to Miss X on 14 September 2022. Throughout this time, the Council unsuccessfully consulted with more than 15 other placement providers to try and identify a suitable special school space for Child Y.
29. Miss X, with the support of School B, requested an interim review of Child Y’s EHC plan where she formally requested Education Other Than At School (EOTAS). School B completed the review meeting on 24 November 2022.
30. The Council’s Governance Board considered the interim review report and Miss X’s request for EOTAS at the end of March 2023. The Council issued its decision notice to maintain the content of Child Y’s EHC plan to Miss X on 5 April 2023, including the naming of School B in section I of the plan. The Council’s decision notice included details of Miss X’s right to appeal to the SEND Tribunal.
31. Since May 2022, Child Y continued to receive a package of alternative education provision through School B. Miss X submitted an appeal about the content of Child Y’s EHC plan to the SEND Tribunal in late July 2023, following a request for mediation to the Council.
32. In early November 2023, Miss X made a stage one complaint to the Council about its handling of Child Y’s education. The Council responded shortly after Miss X’s complaint to explain it could not consider any concerns relating to the content of Child Y’s EHC plan under its corporate complaints process while an appeal to the Tribunal was ongoing. The Council also explained it would not consider any historical concerns Miss X had raised about its handling as these had not been brought to it within 12 months of occurring.

Analysis

33. It is apparent from the timeline above that Miss X has spent a considerable amount of time raising concerns with the Council about its handling of Child Y’s education. I understand from speaking to Miss X, how frustrating, distressing and exhausting this whole process has been for her, Child Y and the rest of their family.
34. The law also prevents us from investigating anything connected to Miss X’s appeal about section B (needs), section F (provision) and section I (placement) of Child Y’s EHC plan to the SEND Tribunal. This means I cannot examine or comment on the Council’s handling in respect of any special or alternative education provision for Child Y while the appeal was ongoing.
35. This leaves the issue of whether the Council acted in line with statutory guidance when it undertook the interim review of Child Y’s EHC plan from 24 November 2022. The Council should have issued its decision to maintain the EHC plan to Miss X in four weeks of the review meeting, which would be 22 December 2022.
36. The Council took almost 15 weeks longer than it should have to issue its decision notice maintaining Child Y’s EHC plan to Miss X on 5 April 2023. This was fault that caused injustice to Miss X and Child Y, which the Council should remedy.

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Agreed action

37. Within one month of my final decision, the Council has agreed to make a written apology and payment of £300 to Miss X for the injustice caused by avoidable delay in issuing its decision notice to maintain Child Y’s EHC plan.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation and found find fault with the Council for avoidable delay. The Council has agreed to take the action recommended to remedy the injustice caused to Miss X by this fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman