Summary: Miss X complained the Council delayed issuing an Education, Health and Care Plan for her child and then failed to provide the specialist provision in her Plan. Miss X says this affected her and her child’s mental health, and she suffered financial loss as she had to obtain professional reports. Miss X also complained about the Council’s communication with her. There were faults by the Council with its complaint handling and its poor communication with Miss X. But the Council’s faults caused no significant injustice to Miss X.

The complaint

1. The complainant, who I will call Miss X, complained the Council:
1. initially refused to issue an EHC Plan for her child, D causing a delay;
2. did not complete appropriate assessments for D during the EHC Plan process and prior to a Tribunal appeal;
3. failed to provide the specialist provision to meet D’s special educational needs;
4. communicated poorly with her; and
5. delayed responding to her complaint.
2. Miss X said the Council’s failings affected her and D’s mental health. She said it also caused significant distress, time and trouble, and financial loss because she had to fund private assessments for the special educational needs and disability (SEND) Tribunal.

Back to top

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. 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. 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)

Back to top

What I have and have not investigated

6. I have not considered the Council’s initial decision not to issue D with an EHC Plan at point ‘a’. This is because Miss X used her right of appeal to the SEND Tribunal. 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 cannot 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)
7. I have not considered the actions of the Council at point ‘b’. We cannot investigate the council’s conduct which includes anything a complainant could have raised with the tribunal at any stage of an 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)  
8. I have considered points ‘c’, ‘d’ and ‘e’ of Miss X’s complaint.

Back to top

How I considered this complaint

9. I considered:
• Miss X’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
10. I have sent Miss X and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

Back to top

What I found

Legislation and guidance

11. 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 tribunal or the council can do this. 
12. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
13. The EHC Plan is set out in sections which include: 
• Section B: Special educational needs.  
• Section C: Health needs related to the child or young person’s SEN.
• Section D: Social care needs related to the child or young person’s SEN
• Section F: The special educational provision needed by the child or the young person. 
• Section G: Any health provision required because of their learning difficulties or disabilities which results in the child or young person having SEN.
• Section H1: The social care provision which must be made for the child or young person under 18 resulting from section 2 of the Chronically Sick and Disabled Persons Act 1970.
• Section H2: Any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN. (Where relevant this includes adult social care provision to meet eligible needs under the Care Act 2014).
• Section I: The name and/or type of educational placement. 
14. 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 that it is not necessary to issue a 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.
15. 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) 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 and the changes are put in place in line with the timescales allowed, or if the appeal is withdrawn or conceded.
16. When the tribunal orders a council to issue an EHC Plan, the council must send the parent a draft Plan within five weeks of the final order. The council must issue the final EHC Plan within 11 weeks of the final order.

Council complaint procedure

17. The Council has a two-stage complaint procedure:
• Stage one: a member of staff from the service complained about will investigate the complaint and respond in 10 working days.
• Stage two: a senior officer in the complaints team will review the complaint and, if an investigation is needed, will respond in 20 working days.

What happened

18. Due to the considerable amount of correspondence in this case, this chronology includes key events and does not cover everything that happened.
19. In April 2022, the Council agreed to assess D for an EHC Plan. In June 2022, the Council decided not to issue D with an EHC Plan. Miss X appealed the Council’s decision to the tribunal in July 2022.
20. The tribunal concluded in January 2023. It ordered the Council to issue an EHC Plan for D.
21. The Council sent Miss X a draft EHC Plan for D in February 2023 for her comments. It issued the final EHC Plan in April 2023 and told Miss X of her appeal rights to the SEND Tribunal if she disagreed with the content of the Plan. The Council named a type of setting in Section I, ‘Local Authority Maintained Specialist School’. The Plan said the Council would continue to work with Miss X to find an appropriate placement for D for September 2023 when D reached compulsory school age. At the time, D was attending preschool and the Council considered this placement could meet the provision in section F of D’s EHC Plan until she started school.
22. In May 2023, Miss X appealed to the tribunal about the content and type of educational placement in D’s EHC Plan, sections B, C, D, F, G, H and I.

Complaint

23. The Ombudsman told the Council Miss X wanted to complain in March 2023. The Council accepted her complaint. She said it delayed providing SEN provision and did not provide speech and language (SALT) provision that was in the EHC Plan. She also complained its communication was poor.
24. The Council responded and said it had not delayed the EHC Plan process. The Council advised it had no information about why D was taken off the waiting list for SALT because this service is managed by the Children’s Centre. It said because of the number of people she contacted at the Council, she was not given consistent answers or information. It apologised for any misunderstanding and confusion in communication. It advised she now had a single point of contact and it had delivered staff training to avoid this happening again.
25. Miss X asked the Council to consider her complaint at stage two in May 2023. She complained the Council did not adhere to the Tribunal’s final order in relation to the content of the EHC Plan. She said the Council was pressurising her into naming an unsuitable school in D’s EHC Plan. She said the Council’s actions had delayed D receiving EHC Plan provision and she had to pay for assessments of D herself putting her at financial loss.
26. The Council responded in May 2023. It said the Tribunal Order was to issue an EHC Plan and it had complied with this. It advised Miss X she did not need to name a school for D and there was no pressure to do so. It upheld her complaint about poor communication.

Analysis

Delay

27. The Tribunal issued its final order in January 2023. The Council issued D’s draft EHC Plan in February 2023, within five weeks of the final order. The Council issued D’s final EHC Plan in April 2023, within 11 weeks of the final order. There was no delay in the Council issuing D’s draft or final EHC Plan. These were not faults.

Specialist provision

28. The right of appeal of a young person or the parent of a child is engaged once a final EHC Plan is issued. And where someone exercises their appeal right, the Ombudsman cannot investigate.
29. In this case, Miss X’s right of appeal to the tribunal was engaged in April 2023 when D’s final EHC Plan was issued. And Miss X exercised her appeal right in May 2023 when she contested the contents of D's final Plan. Therefore, the Ombudsman cannot investigate whether the Council provided the specialist provision because Miss X appealed the relevant sections of the EHC Plan.
30. Although Miss X did not appeal about the Council not providing the specialist provision in D’s EHC Plan, the matter is connected to and cannot be separated from the appeal she made to the Tribunal.

Poor communication with Miss X

31. There was fault by the Council for its poor communication with Miss X. This caused her distress and frustration. In the Council’s complaint response, it acknowledged and apologised to Miss X for any misunderstanding and confusion in communication. I consider the Council remedied the injustice appropriately by assigning a single point of contact to Miss X and it made service improvements. These remedies are proportionate with our guidance on remedies.

Council’s complaint handling

32. The Council registered Miss X’s complaint in March 2023 and said it would provide a response in 10 working days. The Council delayed responding to Miss X. It took 29 working days to issue Miss X with its stage one response. This was fault but I do not consider the delay caused significant injustice to Miss X.
33. There was no delay with the Council’s stage two response. This was sent within 20 working days of Miss X’s request for her complaint to be escalated. This was not fault.

Back to top

Final decision

34. I find some evidence of faults by the Council which caused no significant injustice to Miss X.

Back to top

Investigator's decision on behalf of the Ombudsman