Summary: There was fault by the Council, because it initially did not make agreed changes to an education, health and care plan. However, this fault did not cause any injustice. We have therefore completed our investigation.

The complaint

1. I will refer to the complainant as Mrs T.
2. Mrs T complains the Council:

• named a particular school in the education, health and care (EHC) plan for her son, B, despite the fact she had won a disability discrimination claim against the school;
• refused to name ‘education other than at school’ (EOTAS) as B’s educational placement; and
• made amendments to B’s EHC plan which were not in line with the SEND Tribunal’s order.

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. 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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
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. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)

Back to top

What I have and have not investigated

8. I have investigated the third point of Mrs T’s complaint, about the amendments the Council made to B’s EHC plan after the Tribunal.
9. I have not investigated the first two points of Mrs T’s complaint, about the Council naming a school, and not naming EOTAS, on B’s EHC plan. This is because Mrs T appealed to the SEND Tribunal about the placement section of the plan, which means these matters are now outside our jurisdiction, for the reasons given in the previous section.
10. In speaking to me at the beginning of my investigation, Mrs T also raised a complaint about alleged failures by the Council to implement the provision set out in section F of B’s EHC plan. However, this did not form part of Mrs T’s original complaint to the Council, and although she made a brief reference to it in her escalated complaint, the Council did not include it as a new issue in its response.
11. I will also note the Council’s final response was in January 2024, which was some months before I spoke to Mrs T. As this is an ongoing and evolving matter, it is clear the Council could not have comprehensively addressed it as part of its complaint response anyway.
12. For these reasons I am not satisfied the Council has had the proper opportunity to respond to this element of the complaint. I therefore consider it to be premature for investigation by the Ombudsman and will not consider it here.

Back to top

How I considered this complaint

13. I reviewed Mrs T’s correspondence with the Council, B’s EHC plan and related documents from the Tribunal, and asked the Council to comment on some points.
14. I also shared a draft copy of this decision statement with each party for their comments.

Back to top

What I found

15. The following chronology will give a summary of the key events relevant to this complaint. It is not intended to provide every detail of what happened.
16. B has complex health and learning needs and is subject to an EHC plan. In 2022 Mrs T appealed to the SEND Tribunal about sections B, F and I of the plan issued by the Council. The appeal was concluded in August 2023, with several changes to the plan ordered by the Tribunal.
17. On 7 September, the Council issued a new version of the EHC plan to accord with the changes. Mrs T replied on the same date, saying the Council had made “significant changes” to the plan and that she intended to complain to the Tribunal about this.
18. The Council reviewed the plan, and says it identified some parts of section E were not in accordance with changes which had been suggested, and agreed, by the Council and Mrs T. The Council there issued a revised version of the plan on 12 September, and asked Mrs T to confirm if she was now satisfied with it.
19. Mrs T replied on the same day to say the plan was still not consistent with what had been ordered by the Tribunal. The following day, Mrs T submitted a formal complaint to the Council. She said the new version of the EHC plan included outdated elements in sections F and C, which the judge had ordered to be removed.
20. On 14 September, the Council wrote to Mrs T to say it would review the plan again if she was dissatisfied with the content of sections B and F. Mrs T replied the following day to say the EHC plan was “now with [her] Solicitor”. On 20 September, Mrs T wrote again to complain she had still not received a corrected version of the plan. The Council responded on 22 September to repeat its offer to review it again, pointing out Mrs T had said the matter was now with her solicitor. Mrs T then replied to say she would seek a judicial review.
21. On 18 October the Council responded to Mrs T’s formal complaint. It acknowledged and apologised for the errors in the version of the plan it had issued on 7 September. It also noted Mrs T’s ongoing dissatisfaction with the plan, and said it would arrange to send her a Word version of the plan, to allow her to highlight any errors. However, the Council said these issues had had no impact on the delivery of the plan.
22. The Council sent the Word version to Mrs T on 20 October. On the same day Mrs T replied to demand the Council issue the plan in line with the Tribunal’s orders. She did not return an amended copy of the Word version to the Council.
23. On 5 December Mrs T emailed the Council to say it had issued a final version of the EHC plan without her agreement, and alleging it had been sent this out to professionals working with B. The Council responded on 5 January. It outlined the effort it had made to seek Mrs T’s clarification about the errors she felt were in the plan, including that she had not provided an amended Word version of the document. The Council acknowledged, however, it had inadvertently shared the 7 September version of the plan with some professionals.
24. Mrs T replied on 10 January 2024 to say she had repeatedly explained the errors she felt were in the plan, which were that it did not accord with what the Tribunal judge had ordered. At that point Mrs T asked for her complaint to be escalated. The Council replied to Mrs T on 30 January, saying the judge had ordered changes to sections B, F and I of the plan, and made suggested changes for sections C and G. The Council reiterated it did not understand where Mrs T believed the plan was not in accordance with the order and asked her again to explain this.
25. On 21 February the Council sent its final response to Mrs T’s formal complaint. It reiterated its acknowledgement it issued the EHC plan with errors, but said these were not substantive and did not impact on the delivery of the plan.
26. On 5 March Mrs T’s solicitor submitted a document highlighting discrepancies between the EHC plan and the Tribunal’s order. These comprised background information about B in section A, which the solicitor commented had “been asked to be removed”, as well as several elements which should either have been included, or removed, from section E.
27. On 4 April the Council sent an amended version of the plan incorporating these changes, as well as some other minor amendments to the text to reflect B’s current circumstances. This culminated in the Council issuing a final amended version of the plan on 10 April.

Back to top

Legislative background

28. 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.
29. The EHC Plan is set out in sections which include:

• Section A: The views, interests and aspirations of the child and their parents, or of the young person
• Section B: Special educational needs
• Section C: Health needs related to the child or young person’s SEN
• Section E: Special educational needs outcomes
• Section F: The special educational provision needed by the child or the young person
• Section I: The name and/or type of educational placement 

30. 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.

Back to top

Analysis

31. As I have noted, my investigation of Mrs T’s complaint concerns only the Council’s handling of the amendments to B’s EHC plan, after the Tribunal judgement in August 2023.
32. The Council has acknowledged it originally issued the plan without making certain changes it had agreed to make in section E. It quickly made those and reissued the plan, albeit Mrs T remained dissatisfied with it.
33. Then, after Mrs T’s solicitor submitted a document highlighting further discrepancies in sections A and E, the Council issued another version of the plan. It accepted the amendments highlighted by the solicitor, but also included additional changes to account for developments in B’s situation.
34. It is important to note that neither section A nor E was – or, in fact, could be – actually subject to appeal to the Tribunal. The Tribunal can only order changes to sections B, F and I of a plan. It is therefore not correct to say the Tribunal had ordered the Council to make the changes highlighted by Mrs T's solicitor, or those the Council originally identified itself.
35. Either way, as the Council says it had agreed to those changes, I consider it should have issued B’s plan with the changes in place, and it is therefore fault the Council did not.
36. I am not persuaded, however, this amounts to an injustice to Mrs T.
37. The Council has described these errors as matters merely of administration. I do not quite share this view – section E, in particular, contains important information about the outcomes being sought by the plan, and so it is not simply a technicality as the Council’s comment implies.
38. However, I do agree it is difficult to see what realistic difference an error in section E could make in the short term. Its contents set out the general longer-term aspirations for the child or young person, not the specific provision they need, which instead appear in sections F and G. An isolated error in section E will not change the day-to-day support offered to the child or young person.
39. Similarly, section A simply provides background information about the child or young person. It does not dictate what an education or care provider should do to provide them with support.
40. There is nothing at all to suggest, therefore, that these discrepancies made – or could have made – any difference to B’s situation during the time period in question.
41. I appreciate Mrs T felt frustration at what she perceived to be the Council’s failure to issue a properly amended version of the plan over a period of months. However, during that time the Council repeatedly asked Mrs T to clarify what she felt was wrong in the plan, which she declined to do.
42. I consider this matter could have been resolved more quickly, had she cooperated with what I consider to be a reasonable request from the Council. This being so, I am not satisfied Mrs T’s frustration can fairly be said to be the consequence of the Council’s fault, and it follows I cannot find Mrs T was caused injustice by it.

Back to top

Final decision

43. I have completed my investigation with a finding of fault which did not cause injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman