Summary: Mrs X complained about F’s education and his Education, Health and Care (EHC) Plan between September 2022 and January 2024. The Council delayed amending F’s EHC Plan following an annual review and was at fault for poor complaint handling. It agreed to make a payment to Mrs X to remedy the injustice this caused. Mrs X appealed F’s amended plan to the SEND tribunal between April and November 2023 which puts that period outside of our jurisdiction.

The complaint

1. Mrs X complained the Council failed to ensure her son, F received an education and the provision in line with his Education, Health and Care (EHC) Plan between October 2022 and January 2024. She also complained the Council named an unsuitable school on his EHC Plan.
2. Mrs X said the matter has caused distress, uncertainty and impacted on F’s education and mental health.

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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended).
5. 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).
6. 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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

8. I spoke to Mrs X about her complaint and considered information she provided.
9. I considered the Council’s response to my enquiry letter.
10. Mrs X and the Council had an opportunity to comment on the draft decision. I considered comments before making a final decision.

Back to top

What I found

EHC Plans

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. 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.
13. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135).
14. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

Annual reviews

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.
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. Where the council proposes to amend an EHC Plan, the Courts have found councils must both notify the parent of the decision to amend, and what the proposed changes are within 4 weeks of the annual review meeting. The council must then issue any final amended plan within 8 weeks of the amendment notice. This means a final plan must be issued within 12 weeks of the review meeting.

SEND Tribunal and relevant caselaw

18. 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.
19. There is a right of appeal to the SEND tribunal against 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.
20. 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).
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. Mrs X has a son, F who has special educational needs and an EHC Plan. In 2022 F attended a mainstream primary school (School A) which was named in his EHC Plan. Section F outlined the specialist provision he was entitled to which was mostly dependent on being in a classroom environment.
23. School A held and annual review of F’s EHC Plan in July 2022. Records note Mrs X said F was making friends and progressing with reading and writing however was becoming dysregulated at home which she thought stemmed from school anxiety. The review recommended the Council maintain F’s EHC Plan.
24. In September 2022 Mrs X raised concerns with the Council that F was not receiving sufficient education in line with his EHC Plan. The Council advised School A to hold another annual review.
25. School A held an annual review at the start of November 2022. School A requested further funding to support F one to one and said it had arranged for an Educational Psychologist (EP) to visit F in the school environment to see if his needs had changed. Mrs X said she wanted a specialist placement for F instead of mainstream and said F was socially isolated at School A.
26. The Council agreed to amend F’s EHC Plan.
27. An EP visited F in December 2022 and then again in January 2023. The EP provided their report in February. The report said:
• F would benefit from a smaller school environment.
• It disagreed F was always socially isolated as they had observed him playing and running around with peers.
• The EP recommended F should be taught by someone experienced in dealing with children on the autistic spectrum with high anxiety.
• The EP recommended F should move schools with a robust transition plan in place.
28. Attendance records show F had high attendance at School A until it started declining in early March. F stopped attending school from April 2023 onwards due to anxiety.
29. Records show the Council consulted with two special schools during March (School B and C). School B said it could meet F’s needs. School C did not respond until April when it said it could not meet his needs.
30. The Council’s SEN panel discussed F’s case in April. The panel declined to fund F with a place at School B, instead deciding his needs could continue to be met by School A. The panel agreed to extra funding so School A could provide more one to one support.
31. The Council issued F’s amended EHC Plan at the end of April 2023 and named School A as his placement.
32. Mrs X appealed to the SEND tribunal about both the content of F’s EHC Plan and the naming of School A.
33. Mrs X complained to the Council in May 2023 that F was not attending school as the placement had broken down. Mrs X said nobody had stepped in to help since she raised concerns in September 2022. She complained about the poor amended EHC Plan the Council had recently issued and about naming a school which could not meet F’s needs.
34. The Council provided Mrs X with a final complaint response in early June 2023. It said it was unable to take the complaint forward as Mrs X had appealed to the SEND tribunal. It said it would deal with any outstanding concerns once the appeal process had concluded.
35. The SEND tribunal heard Mrs X’s case in November 2023 and concluded by consent from the Council to amend F’s EHC Plan and name School B in section I. F started attending School B in January 2024.
36. Mrs X remained unhappy and complained to us.

My findings

37. Prior to September 2022 the records show F had good attendance at School A and was doing well, although Mrs X had raised concerns about raised anxiety. That led to the Council maintaining F’s EHC Plan following the July 2022 annual review.
38. Following Mrs X raising concerns about F’s education in September 2022 an annual review was appropriately held and the Council agreed to amend F’s EHC Plan. The notes of the review do not indicate provision in line with the August 2022 plan was not available at School A and I have not seen evidence to suggest otherwise. The concerns were more around a possible change in F’s needs and his anxiety. All the evidence shows F’s attendance continued to be good from September 2022 to April 2023 and School A tried various interventions to try and help F. There is no fault by the Council during this period.
39. Following advice from the EP the Council amended F’s EHC Plan however decided his needs, with extra funding could still be met at School A. While Mrs X disagreed with this decision, it was not fault.
40. However, following the November annual review the Council should have issued the amended plan by the start of February. It did not do so until the end of April which was around a three-month delay. That was fault and delayed Mrs X’s right of appeal to the SEND tribunal and caused frustration.
41. Following the April 2023 amended EHC Plan Mrs X appealed to the SEND tribunal. Paragraphs 18 to 21 explain the restrictions placed on our jurisdiction when someone has appealed to the SEND tribunal against the contents of an EHC Plan. Ultimately the Council named School A which Mrs X disagreed with and the consequence of was F did not attend. Mrs X exercised her right of appeal against both the content of the Plan and the naming of section I. This means we cannot investigate or provide a remedy for any missed education during the period of appeal.
42. When Mrs X complained to the Council she referred to being concerned School A was not providing provision in line with section F. Anything prior to April 2023 was not caught by appeal proceedings and therefore the Council should have provided a complaint response at the time. Not doing so was poor complaint handling and fault which caused Mrs X frustration and uncertainty.

Back to top

Agreed action

43. Within one month of the final decision the Council agreed to take the following action:
1. Pay Mrs X a total of £250 to recognise the frustration and uncertainty caused by the delays issuing the amended EHC Plan and for poor complaint handling.
2. Remind complaint handling staff to respond to education complaints which are not linked to and are separable from any SEND tribunal appeal in good time.
44. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

45. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman