Summary: We will not investigate Mrs X’s complaint about the Council’s failure to secure an education placement and the special education provision in her adult child’s Education, Health, and Care Plan. Mrs X had a right of appeal about this matter, and it is reasonable for her to have used it. Nor will we investigate how the Council secured therapy related provision, because the Council has already made a suitable offer of a symbolic payment to recognise the injustice.

The complaint

1. Mrs X complained the Council failed to secure a suitable education placement after it finalised an Education, Health, and Care (EHC) Plan for her adult child (Y). Mrs X said this meant Y was without education and therapies for a long period.
2. Mrs X said this has had a significant impact on Y’s wellbeing. Mrs X wants the Council to name a suitable placement and a start date.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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.
6. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. 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)

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How I considered this complaint

7. I considered information provided by Mrs X and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Mrs X is the parent of Y. Y is an adult with Special Educational Needs and an EHC Plan.
10. In September 2023, the Council issued an amended final EHC Plan for Y. It did not name a specific placement in section I, but it named the type of placement they would attend. Mrs X subsequently contacted the Council several times about Y’s provision, and she said she got no meaningful response.
11. Mrs X complained about this. In the Council’s final complaint response, it accepted it had not provided Y with education provision or the therapies as outlined in section F of their EHC Plan. The Council also accepted at times its communication had been poor.
12. We will not investigate Mrs X’s complaint about the Council’s decision not to name an education placement. Mrs X had a right of appeal to the SEND Tribunal about that decision, and it is reasonable to expect her to have used this right. In any case, we cannot direct changes to an EHC Plan including the name of the educational placement. Only the SEND Tribunal or the Council can do this.
13. The consequence of the Council’s decision not to name a placement in section I of Y’s EHC Plan, which was appealable to the SEND Tribunal, is Y did not receive their placement-based section F provision.
14. If a person with an EHC Plan is not attending an educational setting, and we decide the reason for non-attendance is linked to, or is a consequence of, a disagreement about the educational placement in the EHC Plan, we do not investigate a lack of special educational provision, or alternative educational provision, where there was a right of appeal to a Tribunal and it was reasonable to use that right.
15. Because we are not investigating this for the reasons I have outlined in paragraph 12 and the placement-based provision is not separable from the Council’s decision not to name a specific placement, we will not investigate this complaint.
16. However, the Council should have ensured it provided other therapies, which are separable from the matters which Mrs X could have appealed. These include:
• Occupational Therapy.
• Speech and Language Therapy.
17. The Council accepted it had not done enough to ensure Y had these therapies and offered a symbolic financial remedy to recognise the injustice caused to Y. The offer is in line with our Guidance on Remedies. Therefore, an investigation is unlikely to achieve any additional outcome, and we will not investigate this complaint.
18. The Council has also offered a symbolic payment in recognition of Mrs X’s time and trouble caused by delays and poor communication. The offer is in line with our Guidance on Remedies. Therefore, an investigation is unlikely to achieve any additional outcome, and we will not investigate this complaint.

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Final decision

19. We will not investigate Mrs X’s complaint because she could have appealed the Council’s decision and it would have been reasonable for her to do so. The Council has also already offered a suitable remedy and there is no additional outcome achievable.

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Investigator's decision on behalf of the Ombudsman