Summary: Ms X complained the Council failed to provide her daughter, Z, with the education and support in her Education, Health and Care Plan. She also complained its communication with her was poor. There was fault in the Council’s communication with Ms X, which caused her frustration. The Council has already provided an appropriate remedy for this. We have not investigated the complaint regarding the educational provision, as this was connected to a matter which Ms X appealed to a tribunal.

The complaint

1. I have considered events between July 2022 and 31 October 2023. During this time, Ms X complained the Council:
1. Delayed reviewing Z’s EHC Plan from 2020;
2. Falsified reports about the British Sign Language support that she required;
3. Delayed putting in place an Education Other Than At School (EOTAS) package after Ms X requested this in July 2022;
4. Failed to secure British Sign Language provision to a level appropriate for Z’s needs; and
5. Failed to respond to her communications in a timely way.
2. Ms X said the Council’s actions caused her and Z frustration and caused Z to avoidably miss out on education and special educational provision.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
5. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

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

6. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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.
8. 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)
9. 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)
10. 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.
11. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
12. 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). 
13. 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)
14. 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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What I have and have not investigated

15. I have not investigated Complaint 1a, that the Council delayed reviewing Z’s EHC Plans since 2020 as this complaint is late and no good reason has been provided that Ms X did not raise this issue with us sooner.
16. I have exercised discretion to investigate events from July 2022 despite these being late. This is because there is a public interest reason for doing so and because Z was not able to make this complaint herself.
17. I have also exercised discretion to look at more recent events, including up to the date Z’s final EHC Plan was issued on 31 October 2023. The Council has agreed to us investigating up to 31 October 2023 in this case.

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How I considered this complaint

18. I considered the information provided by Ms X and the Council.
19. I considered the law and restrictions on the Ombudsman’s powers, as set out in the role and powers section of this document.
20. I considered our Guidance on Remedies.
21. I considered all comments made by Ms X and the Council on a draft decision before making a final decision.

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What I found

Law and guidance

Education, Health and Care (EHC) Plans

22. A young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out their needs and what arrangements should be made to meet them.
23. The EHC plan is set out in sections which include:
• Section B: The child or young person’s 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 school. 
24. We cannot direct changes to the sections about education or name a different educational setting. Only the SEND Tribunal can do that.

Education Other Than at School (EOTAS)

25. Section 61 of the Children and Families Act allows councils to arrange for special educational provision to be made otherwise than in a school. We refer to this as EOTAS in this decision statement.

British Sign Language

26. British Sign Language (BSL) is a form of communication using gestures and other expressions. It is the most common form of Sign Language in England and is used mainly by people who are Deaf or have hearing impairments.

What happened

27. Ms X took Z out of the college named in her EHC Plan in late July 2022. Ms X said it was not suitable for Z and she needed an EOTAS package.
28. The Council reviewed Z’s EHC Plan, said College A was still suitable and named it in Z’s EHC Plan dated 24 August 2022.
29. Ms X appealed sections B, F and I of the EHC Plan to the Tribunal. In the meantime, Z did not receive the education, or support – including BSL tutoring - in her EHC Plan as Ms X declined the placement at College A which would have provided the provision according to the Plan. Z did not receive the provision in her EHC Plan for almost one year while Ms X waited for a Tribunal hearing.
30. The Council put some temporary EOTAS provision in place during this time.
31. Ms X complained to the Council as she said:
• The Council’s communication with her had been poor;
• It delayed putting in place an EOTAS package for Z after she requested one; and
• It failed to secure the BSL provision from her EHC Plan and falsified reports about the level of BSL Z required.
32. The Council responded at the final stage of its complaints process in April 2023. It upheld that its communication with her had been poor and said it could have put in place some EOTAS provision sooner than it did. It apologised and offered Ms X £950 as a remedy for this. Regarding the BSL support, it said due to the ongoing disagreement between Ms X and the Council about the qualification level of the tutor, this matter would need to be resolved at the SEND Tribunal.
33. The Tribunal heard the case on 11 September 2023. It clarified several matters including the qualification level required by the BSL tutor. The Tribunal ordered the Council to amend the EHC Plan.
34. The Council issued the amended EHC Plan within seven weeks of the Tribunal order, on 31 October 2023, rather than within the five weeks given in law.

My findings

35. I cannot investigate Ms X’s complaint that the Council falsified reports about the level of BSL provision that Z required. This evidence Ms X referred to was considered by the SEND Tribunal and the Tribunal made an order in relation to the level of BSL support Z needed. The law says we cannot investigate a complaint if someone has appealed to a tribunal about the same matter.
36. I cannot investigate Ms X’s complaint about the provision Z received between 24 August 2022 and 11 September 2023. The law prevents us from investigating any lack of education or SEN provision received by Z during this period, because her not receiving the provision was a consequence of the disagreement between Ms X and the Council over Sections B, F and I of the Plan. Ms X appealed these matters to the SEND Tribunal and we therefore cannot investigate for the reasons set out in the role and powers section of this document.
37. The Council decided through its complaints process that it would offer Ms X a financial remedy of £950, as it felt it could have put in place some EOTAS provision sooner and because of its poor communication with Ms X. As the Ombudsman has not investigated this matter, due to the jurisdictional issues outlined above, we have not recommended a remedy in this case. However it is open to Ms X to accept this remedy from the Council if she wishes.
38. It is noted that the Council took seven weeks, not the five weeks given in law to issue the amended EHC Plan. This slight delay was fault but I do not consider it caused a significant injustice to Z or Ms X and have therefore decided not to investigate this further.
39. Regarding the Council’s poor communication with Ms X I have decided not to investigate this further, as there is no worthwhile outcome achievable. The Council has accepted fault for its poor communication, apologised and offered Ms X a financial remedy. This has been appropriately remedied by the Council. Further investigation on this matter would not lead to a different outcome.

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Final decision

40. I have ended my investigation. I found evidence of fault and the Council has already remedied that fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman