Summary: Mrs X complains there were failings in the way the Council ensured her child Y received the educational provision set out in their Education Health and Care Plan (EHC Plan) following an EHC needs assessment and when they were out of school causing distress and loss of educational provision. We will not investigate Mrs X’s concerns about the EHC needs assessment in 2022 to 2023 because the complaints are late. We will not investigate Mrs X’s complaints about the EHC Plan and the school setting for Y as Mrs X has the right of appeal against the decision. So, we have ended our investigation.

The complaint

1. Mrs X complains there were failings in the way the Council ensured her child Y received the educational provision set out in their Education Health and Care Plan (EHC Plan) following an EHC needs assessment and when they were unable to attend school.
2. Mrs X says this has caused distress and impacted onto Y’s mental health, educational progress, and the wellbeing of the whole family.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal,
• there is no worthwhile outcome achievable by our investigation.

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

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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). 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.
7. 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).
8. 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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How I considered this complaint

9. I reviewed the information Mrs X provided.
10. I made enquiries with the Council, considered its response, and reviewed the relevant law.
11. Mrs 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

12. 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.
13. There is a right of appeal to the 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
14. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
15. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

What happened

16. This is a brief outline of the complaint and is not meant to include all events and communications between Mrs X and the Council.
17. In 2022 Y attended a mainstream secondary school. Mrs X applied for an EHC Needs assessment for Y in July 2022. The Council agreed to the assessment and consulted with professionals for information about Y. Mr and Mrs X added reports to the Council’s Hub. The reports explained Y had been diagnosed with ASD and ADHD with issues around social communication and interaction. Y also had high levels of school-based anxiety.
18. Mrs X took Y out of school in October 2022 due to concerns about Y’s mental health. Following the EHC needs assessment the Council agreed to draw up an EHC Plan for Y. It made a referral to the Council’s medical inclusion team as Y could not attend school. Y received 10 hours support a week at home as alternative provision through section 19 from March 2023.
19. In July 2023 the EHC case worker spoke to Mrs X about finalising the EHC Plan. Mrs X considered Y could not manage at a mainstream school setting and wanted Y to attend a specialist school. The case worker said the Council would be naming Y’s mainstream school as the educational setting. This gave Mrs X the right of appeal about the placement and released funding to the school which it could use to continue Y’s current educational provision. The case worker said the Council would continue to find Y an appropriate school placement.
20. The Council issued the final EHC Plan at the end of July 2023 naming Y’s current school as the placement at the start of the summer holiday. So, Y’s provision would not start until September 2023. The Council’s documents say the EHC Plan was a bespoke 1:1 package of provision with a personalised timetable, small group provision and support by trained staff.
21. Mrs X says she was happy with the EHC Plan and so did not consider she needed to appeal to the SEND Tribunal although she wanted Y to attend specialist and not mainstream provision. And she had been told the Council was looking at an alternative placement for Y. Mrs X had a preferred educational setting for Y.

Events after July 2023

22. The school arranged for Y to receive 5 hours of home tuition a week in September 2023 due to difficulties attending school. Council documents show the case officer spoke with the school about Y’s placement. And officers were consulting with alternative specialists setting before the Council could decide on Mrs X’s preferred setting.
23. The school submitted a funding request for support for Y. In March 2024 the Council agreed funding for Y to receive 20 hours of alternative provision and 5 hours in school which Y started to receive.
24. The Council started an annual review of the EHC Plan in April 2024 and sent it to Mrs X in May 2024 with proposed changes. Mrs X expressed a parental preference for a different specialist school. So, the Council sent out consultation forms to schools including to Mrs X’s preference.

My assessment

25. I have not investigated any concerns Mrs X may have about the EHC needs assessment process during 2022 to 2023. This is because while the Council appears to have not complied with the timescales of the statutory process Mrs X did not raise this as part of her complaint to the Council. But even if Mrs X wishes to raise concerns about the time taken now, I consider the complaint is late as it is over 12 months since Mrs X was aware of the matter. And she could have brought her concerns about delays to us much sooner.
26. The Council completed the EHC needs assessment and issued the final EHC Plan in July 2023. Mrs X says she was happy with EHC Plan so did not feel it necessary to appeal. But she wanted specialist provision and the Council named mainstream provision for Y. Mrs X had the right of appeal against the setting named for Y. We would expect Mrs X to use her right of appeal as means to secure the specialist provision she wanted.
27. As paragraph six explains 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.
28. Mrs X had the right of appeal from July 2023. I consider it reasonable to expect Mrs X to have used that right to secure the setting and provision she wanted for Y. This included the ability to deliver the named provision which is the crux of Mrs X’s concerns. Only the SEND Tribunal or the Council can direct changes to the sections about a child’s needs, education or the name of the educational placement. So, we will not investigate any concerns Mrs X raised after July 2023 including the provision being made for Y as we cannot achieve the outcome Mrs X wants. And the SEND Tribunal is another body better placed to consider Mrs X’s concerns about Y’s placement and provision. Because of this I have decided to end my investigation.

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Final decision

29. I have ended my investigation. There are no grounds for us to investigate Mrs X’s complaints. This is because parts of Mrs X’s complaints are late, and she has the right of appeal to the SEND Tribunal about the content of Y’s EHC Plan.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman