Summary: Ms F complains the Council has not investigated her complaint that it had failed to make provision for her son’s special educational and social care needs. I have ended our investigation. This is because it is outside the Ombudsman’s jurisdiction as Ms F appealed to the SEND Tribunal.

The complaint

1. Ms F complains the Council has not investigated her complaint that it had failed to make provision for her son’s special educational and social care needs.

Back to top

The Ombudsman’s role and powers

2. 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. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
3. 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.
4. 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)
5. 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)

Back to top

How I considered this complaint

6. I spoke to Ms F about her complaint and considered the information she and the Council sent and:
• The SEND Code of Practice: 0-25 years (“the Code”)
• Statutory guidance: Working together to safeguard children
7. Ms F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

Special educational needs

8. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
9. If (following a child and family assessment) a council decides a disabled child needs support under section 2 of the Chronically Sick and Disabled Persons Act 1970 (“the CSDPA”), it must provide that support and it must be included in Section H1 of the EHC plan. All other social care services, including services provided under section 17 of the Children Act 1989 should be included in Section H2 of the EHC plan.
10. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's plan, or the fact that no school or other provider is named.
11. The SEND Tribunal also has the power to make recommendations about the health and social care sections of an EHC plan. These are non-binding but there is an expectation they will be followed. If they are not going to be followed then the council (for social care) or the integrated care board (for health) will need to write to the parents or young person within five weeks of the decision, explaining why they have decided not to follow the recommendations.

Moving between local authority areas

12. The Code says if a child with an EHC plan moves to a different local authority area, the old authority must transfer the EHC plan to the new authority within 15 working days of becoming aware of the move at the latest. The new authority becomes responsible for ensuring the provision in the EHC plan is secured when it is transferred. (SEND CoP, paras 9.157-9.162)
13. The child should continue to attend the setting named in Section I of the plan unless this is impractical. If it is impractical, the new authority must place the child in an appropriate setting until the plan is amended.
14. The new authority may carry out a new EHC needs assessment. It must review the EHC plan within 12 months of last annual review or within three months of transfer (whichever is the later). The new council must tell the parent within six weeks of the transfer of the plan when it will review it.

The Ombudsman’s jurisdiction in relation to SEND

15. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
16. The courts have established that if someone has appealed to the SEND 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)
17. 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.
18. 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).

Alternative provision

19. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19).

What happened

20. Ms F’s son, J, has complex health issues and special educational needs. The family had been living in a different local authority area (Council X). J was out of school due to illness and receiving online education at home. He had also been assessed as requiring support under section 2 of the CSDPA and was receiving social care support.
21. Council X issued a final EHC plan in March 2022. This named a mainstream school in Suffolk. Section H1 of the plan said J required 60 hours of support from a community support worker. The plan says J’s special educational needs were physical and sensory; anxiety; mental health; language and communication.
22. The family then moved to Suffolk. On 14 June 2022, Ms F complained to the Council that:
• No social care support was in place and she had not heard from the social care team.
• J required a social care assessment.
• She required a carer’s assessment.
• She was funding mentoring for J as the School had refused to.
• She had asked the Council for education other than in school (EOTISC) but had had no response.
• She was appealing the EHC plan as J was unable to access the school named in it.
23. Ms F appealed to the SEND Tribunal in June 2022 about the SEN provision and the school named. She asked for EOTISC (including mentorship), and social care and mental health assessments.
24. The Council replied to Ms F’s complaint on 8 July. It said it would adopt the EHC plan and review it, refer J to its EOTISC team, and provide support for an application to the social care activities budget.
25. Ms F remained dissatisfied and asked the Council to escalate her complaint to stage two. She asked for J’s previous tuition to be reinstated and said she had still not heard from social care.
26. Ms F came to the Ombudsman in October 2022 as she had not had a final response from the Council.
27. In November, the Council told Ms F it could not investigate her complaint at stage 2 as she had appealed to the SEND Tribunal. The Council’s email said:

“We have asked that the Family Services Team advises us once the Tribunal outcome is known, and following receipt of that, we will be in contact with you to confirm how we intend to progress with your complaint and any expected timescales surrounding that.”

28. We issued a final decision in December 2022 that we would not investigate Ms F’s complaint. This was because the SEND Tribunal was considering J’s provision. We advised Ms F that:

“Once the Tribunal is finished, we may be able to consider issues which are separable from the appeal. You will first need to ask the Council to reply to your complaint and then you can come back to us.”

29. The SEND Tribunal concluded in September 2023. The Tribunal’s order noted that J’s special educational needs and provision had been agreed during the appeal and the Council had already put EOTISC in place. The Tribunal ordered section H1 of the report to read: “social care support [to be provided] to access recreational activities and community when he can”.
30. Two further final EHC plans have since been issued.
31. Ms F came back to the Ombudsman in July 2024. She said the Council had not carried out a stage 2 investigation of her complaint and had failed to provide J with a suitable education and assess his need for disability children services since relocating in 2022.

My findings

32. I have ended our investigation into Ms F’s complaint. This is because she appealed to the SEND Tribunal and it has considered J’s educational and social care provision. As set out in paragraphs 4 and 16 above, the law says we cannot investigate a matter that has been considered by the Tribunal. We can only look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal.
33. Once the EHC plan was transferred, the Council was responsible for ensuring its provision was secured, including the social care provision set out in Section H1. If J was unable to attend school due to illness, the Council had to consider whether it had a duty to provide alternative education under section 19 of the Education Act 1996.
34. Whilst these issues may be something we could consider if not connected to a matter that was part of an appeal, in my view the reason for J’s non-attendance at the school named in the March 2022 EHC plan was linked to, or was a consequence of, Ms F’s disagreement about the special educational provision and the educational placement in the EHC plan. In other words, the named school was providing online learning but Ms F considered this insufficient and was seeking EOTISC. As she appealed to the SEND Tribunal for EOTISC, any investigation risks trespassing on the jurisdiction of the Tribunal. I therefore consider the complaint to be outside the Ombudsman’s jurisdiction.
35. We will not usually investigate a failure by a council to adhere to its complaints procedure if the substantive issue is not a matter we can consider.

Back to top

Final decision

36. I have discontinued the investigation as it outside the Ombudsman’s jurisdiction.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman