Summary: Mrs J complained on behalf of her son that the Council has failed to provide his education and specialist provision in line with his Education, Health and Care Plan since June 2021. Due to restrictions on our jurisdiction we have investigated what happened from January to August 2023. We found no fault.

The complaint

1. Mrs J complained on behalf of her son, Mr B, that the Council had failed to provide his education and specialist provision in line with his Education, Health and Care (EHC) Plan since June 2021.
2. This meant his academic levels had deteriorated and he has been unable to gain qualifications, independent living skills or a job, causing him to become isolated and worsening his mental health. It has also caused her significant stress, affecting her health.

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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 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)
4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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)
7. We provide a free service but must use public money carefully. We have the power to start or end an investigation into a complaint about actions the law allows us to investigate. We may decide not to start or continue with an investigation if:
• we decide it would have been reasonable for the person to have complained to us sooner.
• we think the issues could reasonably be, or have been, mentioned as part of legal proceedings regarding a closely related matter.

(Local Government Act 1974, sections 24A(6) and 34B(8), as amended, section 34(B))

8. 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.
9. 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)
10. 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)
11. 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)

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What I have and have not investigated

12. I have investigated Mr B’s special educational needs provision from January to August 2023. I have not investigated the period June 2021 to December 2022. This is because I consider it would have been reasonable for Mrs J to have complained sooner, so I am exercising my discretion as set out in paragraph 7.
13. In addition, as Mrs J appealed to the SEND Tribunal, as set out in paragraphs 9 and 10 I cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal.

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How I considered this complaint

14. I spoke to Mrs J about the complaint and considered the Council’s response to my enquiries and:
• The Special Educational Needs and Disability Code of Practice ("the Code")
• The Special Educational Needs and Disability Regulations 2014 (“the SEND Regulations”)
15. Mrs J 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

Special educational needs

16. A child or young person with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the young person's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
17. Parents or the young person have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their plan, or the fact that no school or other provider is named.
18. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
19. As set out in paragraphs 9 and 10, we cannot investigate any matter connected to an appeal to the tribunal. 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 that is being appealed, we cannot investigate a lack of special educational provision, or alternative educational provision.
20. 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.
21. 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).

What happened

22. I have set out the key events. This is not intended to detail everything that happened.

Background

23. Mr B has autism, mild learning disability and anxiety. He had an EHC plan and was attending a mainstream college. In summer 2021, when Mr B was aged 19, the college said Mr B could not continue onto the second year of the course. At the annual review of his plan in June 2021, it was felt the college could not meet Mr B’s needs and he would not benefit from continuing in education. A referral would be made to the GP in relation to Mr B’s mental health and to supported employment schemes.
24. Later that summer, Mr B decided he wished to continue in education. Mrs J asked the Council about an education provider (College 1) which provides tutors and support workers to deliver tailored specialist further education courses for young adults with complex needs. The Council considered another mainstream college (College 2) would be suitable.
25. A final EHC plan was issued in December 2021. This said Mr B should receive support from College 1 until the end of that academic year and then transition to College 2 from September 2022.
26. Mrs J appealed to the Tribunal. She requested a residential specialist college (College 3).
27. Mrs J complained to the Council in early 2022 about a delay in the starting of College 1 provision. It started in June 2022. Mr B did not start at College 2 in September 2022. Mrs J says this was because it was not suitable. There was a Tribunal hearing in October 2022. College 3 said it was not able to take Mr B and the hearing was adjourned.

January 2023 onwards

28. Mrs J complained to the Council in January 2023 that Mr B was not receiving his EHC plan provision. This was because College 1 support could not provide all that was set out in his plan.
29. The adjourned Tribunal continued at a hearing on 24 January 2023. The Tribunal issued provisional conclusions and directions that Mr B should continue with the College 1 provision and transition to a setting that could provide structure in September 2023.
30. The Council replied to Mrs J’s complaint on 31 January 2023. It said it had sent her details of education providers to consider. In the meantime, College 1 provision would continue. The Council has sent evidence that it consulted with 13 education providers at this stage. College 4 offered to assess Mr B.
31. A councillor emailed Mrs J on 28 February saying a social care package had been agreed to support Mr B to get ready for the College 1 sessions, so that he could attend the education setting with the support worker.
32. Mr B’s support worker at College 1 then left. The Council says College 1 continued to offer provision and the Council also offered to commission a tutor or to explore a vocational placement as an interim arrangement, but Mrs J did not consider this suitable.
33. The adjourned Tribunal continued at a hearing on 13 July 2023. The Tribunal issued provisional conclusions that College 3 was not suitable and that College 1 was unsuitable for Mr B in the long term. College 1 therefore ended its provision to Mr B at the end of August 2023. Mrs J says that due to staffing issues there was only one further session after the Tribunal. The Council offered interim home tuition and a vocational package.
34. Mrs J considered College 4 and home tuition was not suitable. She complained to the Council about the ending of College 1’s provision.
35. The Tribunal concluded at a hearing on 5 December 2023. The Tribunal issued its decision and order on 8 January 2024. This said College 3 was unsuitable and Mr B did not require a residential placement. He should receive education other than in school or college pending admission to a special college that can meet the needs of students with autistic spectrum disorder and social, emotional and mental health needs. The Council says since January 2024, Mr B has received one-to-one tuition for three hours a day, three days a week. On other days he is engaged in vocational courses and equine therapy.
36. An amended final EHC plan was issued on 6 February 2024. Mrs J came to the Ombudsman.

My findings

37. Mr B’s December 2021 EHC plan said he should receive support from College 1 until he moved to College 2. As explained earlier in this statement, I cannot investigate a lack of special educational provision if a young person is not attending college 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 which is being appealed. Mr B and Mrs J did not wish him to attend College 2 as they considered it unsuitable. This formed part of the appeal so I have not considered College 2 provision after December 2021. Nor have I considered which college was suitable for Mr B as this is for the Tribunal, not Ombudsman, to determine.
38. However, I have investigated whether the College 1 provision was made from January 2023 because the Tribunal confirmed then that it should continue in the short term.
39. College 1 was available to Mr B from January to August 2023 but there were staffing issues which meant not all sessions could be provided. The Council offered alternatives although Mrs J did not consider these to be suitable. My view is that there was no fault by the Council. It had secured the College 1 provision requested by the Tribunal and set out in Mr B’s plan. When there were problems delivering this, it offered alternatives it considered suitable.
40. College 1 ended its offer following the Tribunal’s provisional conclusions in July 2023 that it would not be a suitable placement for Mr B going forward. This is not fault.
41. I cannot consider provision from September 2023 as this was under appeal, as set out in paragraphs 9 and 10.

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Final decision

42. There was no fault by the Council. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman