Summary: Mrs X made several complaints about how the Council handled her daughter’s Education, Health, and Care plan, and ensured she had education, including special education provision while she was not going to school. We cannot investigate some of Mrs X’s complaint because they are outside our jurisdiction, and of the other parts of her complaint we have considered, there was no fault in the Council’s actions.

The complaint

1. Mrs X said she was dissatisfied with how the Council have handled her daughter’s Education, Health, and Care (EHC) Plan and special education provision (SEP) from 2022 onwards. She said specifically, the Council did not:
1. Fully provide her with alternative education provision including her SEP, after her 2022 EHC Plan, while she was not attending school.
2. did not carry out an annual review within 12 months of the 2022 EHC Plan;
3. did not issue the final EHC Plan after a SEND Tribunal ruling in 2023, and;
4. did not then carry out an annual review as ordered by the SEND Tribunal.
2. Mrs X said because of this her daughter (Y), has lost a significant amount of education. She also said because the Council did not comply with the requirements in relation to reviews, she was unaware of what the provision Y was owed and was denied her appeal rights.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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 continue parts of an investigation if we decide any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we 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)
6. 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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

Back to top

What I have and have not investigated

8. I cannot investigate Mrs X’s complaint at a), for the period between September 2022 and November 2023. Mrs X appealed to the SEND Tribunal following the 2022 Final EHC Plan and the Tribunal issued a decision in mid-November 2023.
9. Because Mrs X’s appeal related to the education placement and SEP, the consequence of Y not receiving education during this period, was because Mrs X had disagreed with the placement and provision. Because of legislation highlighted (paragraph five) and relevant case law (paragraph 20), I cannot consider these matters.
10. However, as it affects complaint a), I have considered the period where Y was not at school after November 2023 up until March 2024.
11. Mrs X also complained about the Council’s actions in not carrying out an annual review and she said this was ordered by the SEND Tribunal in November 2023 (complaint d)). The evidence shows there was an annual review meeting initially set for February 2024, but my view is any procedural fault there may have been here in the timing of this, after the SEND Tribunal, has not caused a significant enough injustice to Mrs X, to warrant further consideration. The law (paragraph 4) allows us to decide to end parts of our investigation in these circumstances.

Back to top

How I considered this complaint

12. I spoke to Mrs X representative and considered the information Mrs X provided.
13. I considered the Council’s comments and the documents it provided.
14. I considered the special educational needs and disability (SEND) code of practice which sets out specific legal requirements and guidance which Council’s should follow.
15. Mrs X and the Council now have an opportunity to comment on my draft decision. I will consider any comments before making a final decision.

Back to top

What I found

What should have happened

EHC Plan 

16. 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. 

Maintaining the EHC Plan

17. 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)  

Reviewing EHC Plans

18. 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. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.

Relevant timescales after a SEND Tribunal order

19. After the tribunal requires the Council to name a specified school, it should issue the amended EHC plan within 2 weeks of the order being made. Where the Council are ordered to amend the special education provision, it should issue the EHC Plan with those amendments within five weeks of the order. (Regulation 44 of the Special Educational Needs and Disability Regulations 2014).

Relevant caselaw when appeal rights have been engaged

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. 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, we cannot investigate a lack of special educational provision, or alternative educational provision.
22. 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.

What happened

23. In mid-September 2022, the Council issued a final EHC Plan (number 7) for Y and gave Mrs X her right to appeal to the SEND Tribunal. The EHC Plan also set out Y’s provision in sections B (special educational needs) and section F (special education provision). In section I, the educational placement the final EHC Plan named School A.
24. The evidence shows Mrs X refused to send Y to School A. She said it could not meet Y’s special educational needs.
25. Mrs X lodged her appeal against the final EHC Plan in October 2022. In that appeal she asked the Tribunal to consider sections, B, F, and I. The evidence shows Mrs X had asked for Y’s education provision as an education otherwise than at school (EOTAS) package.
26. Between September and November 2022, Mrs X and the Council were in discussion about Mrs X’s request for interim education provision for Y, while she was out of school. The evidence shows the Council maintained a view that Y’s education and her SEP, could be met by School A. Mrs X said she wanted the Council to provide an EOTAS package until the SEND Tribunal decided.
27. In December, the Council agreed it would consider an interim EOTAS package and in March 2023, it agreed this with Mrs X.
28. In early August 2023, during the period of appeal, but before the hearing, the Council wrote to Mrs X telling her an annual EHC review was now approaching its due date. It initially arranged a review meeting for late August.
29. Shortly after this exchange, the Council postponed the review, saying it wanted to ensure Y’s school were also in attendance. The evidence shows the Council planned a review for mid-September.
30. In mid-September, the Council were in touch with Mrs X about ongoing school consultations (other than School A). Simultaneously, part of these exchanges with Mrs X, involved the preparation of a draft EHC Plan. The evidence shows the Council intended this to be a working document, to be provided to the forthcoming SEND Tribunal panel members.
31. The SEND Tribunal hearing took place in mid-October and in mid-November, the Tribunal issued a decision notice. The Tribunal decision notice variously references its conclusions on SEP, where there was a disputed aspect remaining between the Council and Mrs X.
32. The Tribunal then made the following orders to amend Y’s EHC Plan:
• For the Council to replace the existing working document with an attached final document.
• The final EHC Plan to name school A.
33. The evidence from the Tribunal decision notice shows, before the hearing, Mrs X and the Council had been in regular dialogue, with a view to securing agreement, where possible, about amendments to the draft EHC Plan.
34. The available evidence indicates in late November, the Council then issued Y’s amended EHC Plan (number 8), naming School A as Y’s education placement. Mrs X said in comments to us that the Council did not send this to her.
35. From the evidence I have seen, following this, Mrs X then continued to dispute the named school saying it could not meet Y’s needs and that she would not send Y there. She also asked the SEND Tribunal for permission to allow her to appeal its earlier decision.
36. The evidence shows the Council arranged for an annual review to take place including Mrs X and School A, in February 2024. Mrs X declined to attend this and then declined a subsequent offer of a rearranged review meeting in March 2023.
37. The Council subsequently held this meeting and in late March 2024, it issued a decision it would maintain Y’s EHC Plan. Mrs X’s representative told me she intended to appeal this decision and is in the process of mediation.
38. In an email exchange Mrs X and the Council had, the Council informed Mrs X, the interim EOTAS provision it had secured would stop at the end of the spring term (2024). The Council told Mrs X that School A could meet the provision outlined in Y’s EHC Plan.

My findings

Complaint a) education provision-November 2023-March 2024

39. Mrs X said the Council did not ensure Y had alternative provision, including all the special education provision (SEP) in line with her EHC Plan. The Council provided some education to Y at home, but this did not meet the provision in Y’s plan. However, there was no fault by the Council. The Council named a school place where that provision would have been available. This met its duty to secure the provision in Y’s EHC Plan. The Tribunal confirmed this was a suitable school for Y’s needs. Mrs X chose not to send Y to school.

Complaint b) 2023 annual review

40. There is a requirement for the Council to carry out a review every 12 months and the available evidence suggests it initiated the process, but then did not carry out an annual review in 2023, within those timescales. However, in the circumstances of this case, because at the relevant time, it was working with Mrs X on draft EHC Plans ready for the SEND Tribunal, I do not find it was fault it did not complete the annual review process it started.

Complaint c) Issuing a Final EHC Plan after the SEND Tribunal

41. Following the conclusion of the SEND Tribunal, the Council should issue a final EHC Plan within two weeks. I am satisfied on balance of the evidence it did so, naming Y’s school and therefore I find no fault in its actions here.

Back to top

Final decision

42. I have completed my investigation with a finding of no fault.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman