Summary: Miss B complained the Council failed to provide the special educational provision detailed in her daughter, Y’s, Education, Health and Care Plan. We find the Council at fault for the way it handled Miss B’s complaints. The faults caused Miss B distress, frustration and uncertainty. The Council has agreed to apologise for the injustice caused by the delays in complaint handling.

The complaint

1. Miss B complained the Council failed to provide the special educational provision detailed in her daughter, Y’s, Education, Health and Care Plan. Miss B also says the Council has been unhelpful and it failed to respond to her complaint. Miss B says this has caused stress and heartache and the Council is failing Y. Miss B would like the Council to fulfil its duty and provide the relevant provision.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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(1), as amended)
5. 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

6. Miss B first complained to us in July 2023. We closed this complaint as Miss B had not completed the Council’s complaints process. Miss B followed the Council’s complaints process and experienced delays in receiving responses. Miss B complained to us again in April 2024. As Miss B first came to us in July 2023, I have exercised discretion to investigate Y’s access to education from September 2023 as I believe Miss B had good reason for bringing this complaint to us late.
7. 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)
8. 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.
9. 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.
10. The same restrictions apply where someone had a right of appeal to the Tribunal, and it was reasonable for them to have used that right. For this reason, I have not investigated Y’s access to education after the Council issued the amended EHC Plan in November 2023.
11. My investigation looks at the Council’s actions in providing Y’s education between November 2022 and November 2023. I have also investigated the Council’s handling of Miss B’s complaints which she submitted between January 2023 and June 2024.

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How I considered this complaint

12. I considered evidence provided by Miss B and the Council as well as relevant law, policy and guidance.
13. Miss B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legal and administrative background

Education Health and Care Plans

14. 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. 
15. 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)  
16. 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. 

Complaint handling

17. The Council’s complaints policy sets out a two stage process for handling complaints about special educational needs and disability (SEND).
18. At stage one the Council will provide a written response within fifteen working days. If the complaint is complicated the Council may need longer to respond but it should contact the complainant to make them aware of this and provide an idea of when a response will be provided. If the person complaining is not happy with the stage one response they can move to stage two of the process.
19. At stage two a senior officer will investigate the complaint and provide a response within ten working days. If a response cannot be provided within this timeframe the Council will explain why and provide an idea of when a response will be provided.

What happened

Access to education

20. Y was first issued an EHC Plan in June 2022. The family received support from the Council’s early help team from August 2022.
21. Y began secondary school in September 2022. The school Y attended was named in her EHC Plan.
22. After the first week, Y struggled to attend. The Council and school held a meeting in the second week of September to discuss ways to support Y’s attendance. Council records show it was agreed work was needed to build Y’s confidence and put a plan in place to support Y back into school. Professionals agreed Y’s anxiety appeared to be school based.
23. The school offered Y a phased integration plan and additional support in the classroom and at lunchtime. However, Y did not return to school.
24. At the end of September 2022, Miss B contacted the Council and raised concerns about the suitability of Y’s school. The Council told Miss B that Y’s placement could not be changed without an annual review of the EHC Plan. The Council also explained that the school had not been able to implement any support due to Y not attending.
25. The Council contacted the school the following day to get its perspective on Y’s attendance difficulties and determine the next steps for support. The school responded to explain Y was not attending despite the offer of a phased return and additional support.
26. The Council arranged a professionals meeting to discuss Y’s attendance at school. Council records show it considered Y’s attendance and decided a change of placement would not address the issue. The Council’s plan was to support Y to attend the school and allow more time for the school to implement support strategies and outreach support. The Council planned to review Y’s attendance after the October half term and from here it would decide if an early annual review of Y’s EHC Plan was necessary.
27. A few days later, following a home visit to support Y, the Council decided to arrange an early annual review. The Council asked the school to arrange the review meeting and contacted Miss B to explain the process.
28. Miss B contacted the Council to say the school was not sending work for Y to complete at home. The Council contacted the school to request it send work for Y to complete.
29. An emergency annual review meeting took place in October 2022. It was agreed the Council would consult with another mainstream school at Miss B’s request.
30. A further meeting was held at the beginning of November 2022 as Y was still unable to attend school despite the offer of support. A plan was agreed to engage Y in education while the Council consulted with schools as part of the annual review process. The plan to support Y included:
• A teacher to observe Y to allow them to pick a suitable buddy to support her socially in school.
• A review of Y’s timetable, allowing her to attend the lessons she was most suited to until she was able to manage full time education.
• A phased return to school with support from Early Help.
31. This plan was due to start in the second week of December. In the meantime, the school provided tuition for Y. This was provided at Y’s home, by a teaching assistant and consisted of a thirty minute session, four times a week.
32. Following the annual review meeting, the Council issued Y’s final amended EHC Plan in the first week of December 2022. The Plan continued to name the same school. Council records show it considered whether the placement was suitable, and professionals agreed it was. Before issuing the Plan, the Council asked the school to increase Y’s tutoring sessions and have them take place outside of the home to gradually build up her timetable to support her access to school.
33. Miss B was unhappy with the placement named in section I of the EHC Plan so requested a mediation meeting. The mediation meeting took place at the beginning of February 2023. It was agreed the Council would complete a new educational psychology assessment and put Y forward for specialist provision, so Miss B did not pursue an appeal.
34. 12 weeks of specialist provision was secured for Y in March 2023, and Y became dual registered with the school and the specialist provision.
35. There was a delay in Y beginning the specialist provision due to issues with arranging transport. To remedy this, the missed sessions were added to the end of the original 12 week period. The placement was further extended while the Council awaited the educational psychology report and placement consultations.
36. An amended EHC Plan was issued in November 2023. Miss B had the right to appeal this Plan.

Complaint handling

37. Miss B submitted a stage one complaint to the Council in January 2023. Miss B complained Y had been out of education for a long time as her primary school and the Council had failed to provide the correct support. Miss B emailed the Council a few days later to provide some additional information about her dissatisfaction with the actions of Y’s primary school.
38. In response to our enquiries, the Council provided an internal email which explained Miss B’s complaint was not to be treated as a SEN complaint as the Council had identified a suitable provision and named a suitable school. The Council had advised Miss B to appeal the content of Y’s EHC Plan if she was unhappy, therefore the Council would not uphold the complaint. The Council has not provided any evidence Miss B received a response to her complaint.
39. Miss B submitted a further complaint in January 2024. Miss B complained the Council had failed to provide Y with education while she was unable to attend school.
40. The Council issued a stage one complaint response at the end of May, 96 working days after Miss B submitted her complaint. The Council explained the delay in responding was due to Miss B’s January 2024 complaint being submitted as a further reply to the complaint which was submitted in January 2023. This meant the complaint was not picked up as a new stage one complaint until March 2024. The Council did not uphold Miss B’s complaint.
41. Miss B responded to explain she was not happy with the response she had received. Miss B’s email to the Council contained additional information about Y’s new school which was not included in the original complaint.
42. The Council contacted Miss B to explain it would escalate her January 2024 complaint to stage two and record the comments about the new school as a new complaint.
43. In response to our enquiries the Council provided an internal email from August 2024 which explains Miss B’s complaint is about the actions of the school rather than the council so it would not uphold her complaint. The Council has not provided evidence Miss B received a stage two complaint response.
44. The Council wrote to Miss B in June 2024 to explain it would not uphold her complaint about the school which she submitted in May 2024.

My findings

45. There is no evidence of fault in the Council’s action in providing education for Y. The Council considered the available evidence and opinions of the professionals involved in supporting Y. The Council regularly reviewed Y’s attendance and the support on offer from the school. It also took action to increase or change the support available when necessary.
46. The Council failed to provide Miss B a response to her complaint in January 2023. This is fault which caused Miss B distress, frustration and uncertainty.
47. The Council delayed in providing a stage one complaint response to Miss B’s January 2024 complaint. This is fault which caused Miss B distress, frustration and uncertainty.
48. The Council failed to provide Miss B with a stage two complaint response. This is fault which caused Miss B distress, frustration and uncertainty.

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Action

49. Within one month of the final decision the Council will apologise to Miss B for the faults identified with its complaint handling. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology.
50. The Council should provide us with evidence it has complied with the above actions.

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Decision

51. I find fault causing injustice. The Council has agreed to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman