Summary: We upheld a complaint about a delay in issuing an amended Education, Health and Care Plan. This caused avoidable distress and a delay in appeal rights. The Council will apologise, make a payment and take action described in this statement to minimise the chance of recurrence.

The complaint

1. Mr X complained the Council failed to issue an amended Education, Health and Care Plan for his child Z within 12 weeks of an annual review.
2. Mr X also complained:
1. The Council refused to conduct a review of his complaint at the second stage of the complaints’ procedure and didn’t offer an appropriate remedy;
2. The headteacher of School A reversed a previously agreed decision; and
3. There was a lack of consultation with Z’s healthcare clinicians and a lack of parental consultation of a draft EHC Plan in May.
3. Mr X said this caused avoidable distress. He said it also meant Z could not stay at School A when he understood the plan had always been for her to stay there until 18.

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The Ombudsman’s role and powers

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 Tribunal in this decision statement.
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We cannot investigate a complaint if it is about what happened in a school. (Local Government Act 1974, Schedule 5/5a, paragraph 5, as amended)
7. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH [1999] EHCA Civ 916)
8. 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)
9. We cannot investigate anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the tribunal has considered on its own initiative, or which could have been a part of the tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  
10. 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.
11. 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)
12. 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)
13. 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

14. I have investigated the complaint in paragraph one.
15. I have not investigated the complaints in paragraph two because:
• The actions of the headteacher are not within our remit as I have explained in paragraph six;
• Mr X has appealed Z’s EHC Plan to the Tribunal which will hear his appeal later this year. It is reasonable for him raise those issues as part of the appeal; and
• We don’t usually investigate complaints about complaint handling when we are not investigating the substantive issues.

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How I considered this complaint

16. I considered the complaint to us, the Council’s responses to the complaint and I discussed the complaint with Mr X
17. Mr 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 law and guidance

18. 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. The EHC plan is set out in sections including:
• 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. 

We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.

19. An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education. This is to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments naming the post-16 placement must be completed by 31 March in the calendar year of the transfer at the latest for transfers into or between schools. (SEND Regulations 2014, Regulation 18.)

What happened

20. Z has learning disabilities and the Council maintains an EHC Plan for her. She is at the post-16 stage of education.
21. Z’s annual review for transferring to a post-16 placement took place in January 2023. Her amended final EHC plan was due by 31 March but was not issued till July. The Council accepted in its first response to the complaint that it did not meet this deadline. The response went on to say:
• Mr X submitted his preference for a school placement for Z in September 2022 for the following school year (this was School A, her school at the time);
• The Council received the annual review papers in January 2023. The papers said Z would likely remain at School A until the next annual review;
• The Council found out in April 2023 that School A could not offer a post-16 placement. At that time the Council had not consulted with School A to request a post-16 placement;
• The SEND keyworker started identifying placements. School A was consulted and said it could not meet Z’s needs. School B said it could offer her a place in September 2023 and this was named in her EHC Plan;
• It did not meet the legal timescales due to staff shortages in the district at the time. However, School A, when consulted, declined a place and a place was never offered through the consultation process; and
• If he did not agree with the placement, he needed to appeal to the tribunal.
22. The Council’s second response said it had apologised and explained that the SEND service as a whole was working to increase capacity. It said if he was not in agreement with the content of the final EHC Plan, he needed to appeal to the Tribunal and the second stage of the complaints’ procedure would therefore not deal with this.
23. Mr X told me Z has remained at School A and he has appealed the EHC Plan to the Tribunal which is due to hear the case this year.

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Was there fault and if so did it cause injustice?

24. The Council was at fault because it failed to issue an amended EHC Plan for Z’s phase transfer by 31 March 2023. This caused Mr X avoidable frustration, distress and delayed his appeal rights. However, even if the Council issued the Plan on time, the position would have been no different: School A would have been consulted sooner and would likely have refused Z a placement as it said it could not meet her needs.
25. Z has remained at School A according to Mr X (although the placement named on her Plan is School B). So I do not consider she suffered any loss of educational provision. I cannot comment on any loss of provision from the date of the final Plan as this is under appeal.

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Agreed action

26. The Council will one month of my final decision:
1. Apologise for the fault and injustice described in this statement. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Make Mr X a symbolic payment of £200 to reflect the avoidable distress and delay in appeal rights.
27. Within three months, the Council needs to ensure it has enough staff in the SEND team in Mr X’s district to deal with processing annual reviews within the legal timescales. It needs to tell us in writing what changes it has made to staffing with reference to staffing levels before and after this complaint.
28. The Council should provide us with evidence it has complied with the actions in paragraphs 26 and 27.

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Final decision

29. I uphold a complaint about a delay in issuing an amended Education, Health and Care Plan. The delay caused avoidable distress and a delay in appeal rights. The Council will apologise, make a payment and take action described in this statement to minimise the chance of recurrence.
30. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman