Summary: the Council took too long to update Mrs M’s son B’s education, health and care (EHC) plan. We cannot investigate Mrs M’s complaint about the lack of alternative provision because of her appeal to the SEND Tribunal. Mrs M should complain to the Council in the first instance about the missing assessments ordered by the Tribunal. The Council has provided a suitable remedy for the delay updating B’s EHC Plan.

The complaint

1. Mrs M complains about delay updating her son B’s Education, Health and Care (EHC) Plan. B’s school held an annual review meeting on 5 May 2022. The Council issued a new Plan on 24 July 2023.
2. Mrs M asked the Council to make alternative arrangements for B’s education on 24 October 2023. B was a pupil at a special school, but the school environment was causing him distress. He was receiving one hour of provision per week. Mrs M wanted provision for B at home.
3. Mrs M complains B did not receive suitable education between September 2023 and May 2024 when the Council agreed to arrange B’s education at home.
4. Mrs M complains the Council failed to provide assessment reports as directed by the SEND Tribunal, specifically:
• an occupational therapy report;
• a speech and language therapy report; and
• the views of the relevant health authority on B’s health needs and provision.
5. Mrs M complained the Council did not provide suitable free school meals when B was unable to attend school. She says the school sent food which B would not eat. She wanted the Council to provide vouchers instead.
6. Mrs M says B struggled throughout the nine years he attended the school.

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The Ombudsman’s role and powers

7. 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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
8. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
9. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
10. 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)
11. 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

12. In her complaint to us, Mrs M described B’s struggles throughout the nine years he attended school and the difficulties she has encountered.
13. The law says complaints to the Ombudsman must be made within 12 months of a person becoming aware of the matter they complain about. We may investigate late complaints, but only if there was a good reason the complaint could not have been made sooner.
14. I have not investigated all nine years of B’s education because it is too late.
15. I have investigated what happened from May 2022 when the Council began the latest review of B’s EHC Plan. Mrs M complained to us within 12 months of the date the Council completed the review.

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How I considered this complaint

16. I considered information provided by Mrs M and the Council. I invited Mrs M and the Council to comment on my draft decision.

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What I found

17. Mrs M’s son, B, has an Education, Health and Care (EHC) Plan maintained by the Council.
18. Mrs M complained to the Council about B’s education on 24 October 2023.
19. Mrs M complained to us on 9 May 2024. She said she had not received a response from the Council.
20. The Council said it had responded on 1 December 2023. The Council’s response was very brief. It said the Council would “continue to look into a suitable placement” as part of an appeal Mrs M had lodged with the SEND Tribunal.
21. We asked the Council to respond at the second stage of its complaints procedure.
22. The Council wrote to Mrs M on 24 June 2024 with its final response. Again, the Council’s response was brief. It explained the Council was creating a package of education other than at school for B following an agreement reached during Mrs M’s appeal to the Tribunal.
23. Unhappy with the Council’s response to her complaint, Mrs M complained to us again on 13 September 2024. She wrote a long letter in which she complained about her dealings with the Council over the years and explained the impact on her family.

Complaint one: delay updating B’s EHC Plan

24. Mrs M complains about delay updating her son B’s Education, Health and Care (EHC) Plan. B’s school held an annual review meeting on 5 May 2022. The Council issued a new Plan on 24 July 2023.
25. The procedure for reviewing and amending an Education, Health and Care Plan is set out in legislation and regulations.
26. The process begins with a review meeting which is usually organised by the school on behalf of the Council.
27. Following the meeting, the school must send a report to the Council and the Council must decide within four weeks whether it intends to make changes to the child’s Plan.
28. If it decides to amend the Plan, the Council must notify the parents of the changes it intends to make and invite them to request a particular school. A recent court judgement confirmed this must happen within 4 weeks of the review meeting.
29. The Council must issue the final Plan as quickly as possible and within eight weeks of sending the draft Plan.
30. B’s school held an annual review meeting on 5 May 2022. The Council decided to amend B’s plan. The Council should have issued the Plan by 28 July 2022. The Council issued a final amend EHC Plan on 24 July 2023. This was 51 weeks late. The Council did not meet the timescales in the regulations. This is fault.
31. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council.
32. The Council should have issued the plan almost a year earlier. In fact, the Council should almost have completed an annual review of the plan by the time it issued the plan. The delay meant there were fewer opportunities to formally review B’s progress and check the provision met his needs. This is an injustice.
33. There are many similarities between the July 2023 plan and the December 2021 plan it replaced. Both plans say B will attend a special school where he will be taught by highly skilled and experienced staff and follow a development- and age-appropriate curriculum.
34. I cannot identify any special educational provision B missed because of the delay amending the plan for which I should recommend a remedy.
35. However, Mrs M disagreed with the July 2023 Plan and appealed its contents to the SEND Tribunal. It is possible Mrs M would have appealed sooner if the Council had not taken so long to issue the Plan.
36. We previously recommended the Council make a symbolic payment of £300 to recognise the delay to Mrs M’s right of appeal. I understand the Council made the payment. We withdrew our decision when challenged by Mrs M. However, having given the matter careful consideration, I consider the payment and apology sent by the Council were a suitable remedy. They are in line with our published guidance.

Complaint two: alternative arrangements for B’s education

37. Mrs M asked the Council to make alternative arrangements for B’s education on 24 October 2023. B was a pupil at a special school, but the school environment was causing him distress. He was receiving one hour of provision per week. Mrs M wanted more provision for B at home. She referred to the Council’s duty under s19 of the Education Act 1996.
38. This says that every council shall “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
39. The Council is – in effect – a “safety net” and must make alternative arrangements for a child’s education when needed.
40. The Council may have had a duty to make alternative arrangements for B’s education. It is not, however, a matter I can investigate.
41. Another recent court judgement confirmed that we cannot investigate complaints where someone has used their right of appeal to the Tribunal about the same matter. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
42. Mrs M’ appealed sections B (special educational needs), F (special educational provision) and I (educational placement) of B’s EHC Plan to the SEND Tribunal. Her complaint (about the Council’s failure to arrange suitable education for B away from school) and her appeal (in which she requested education for B away from school) were effectively about the same matter. This means I cannot investigate Mrs M’s complaint.

Complaint three: assessment reports

43. Mrs M complains the Council failed to provide assessment reports directed by the SEND Tribunal. The Tribunal issued an adjournment notice with directions on 28 April 2024. The notice required the Council to produce a number of assessments before the next hearing which was scheduled for 4 July 2024.
44. The 4 July 2024 hearing was also adjourned. The final hearing took place on 26 July 2024. The judge noted the Council had failed to provide three of the reports. The Council said it had commissioned the reports and would incorporate their recommendations into B’s EHC Plan.
45. Mrs M complains the Council has not complied with the undertaking it gave the Tribunal. I have not seen evidence the Council has had an opportunity to consider this part of Mrs M’s complaint. The law says councils must have an opportunity to investigate and respond before the Ombudsman considers a complaint. I recommend Mrs M takes the matter up directly with the Council.

Complaint 4: free school meals

46. Mrs M complained the Council did not provide a suitable alternative to free school meals when B was unable to attend school. She says the school sent food which B would not eat. She wanted the Council to provide vouchers instead.
47. Schools are responsible for providing free school meals.
48. We investigate complaints about Councils and some other bodies. We cannot investigate complaints about schools. I cannot, therefore, consider Mrs M’s comments about the free school meals provided by B’s school.

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Final decision

49. I have completed my investigation. The Council took too long to update Mrs M’s son B’s education, health and care (EHC) plan. The Council has provided a suitable symbolic remedy. We cannot investigate Mrs M’s complaint about the lack of alternative provision because she appealed to the SEND Tribunal. Mrs M should complain to the Council in the first instance about the missing assessments ordered by the Tribunal. We cannot investigate Mrs M’s complaint about free school meals.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman