Summary: We will not investigate Mr X’s complaint about the Council’s failure to provide an alternative education for his son, Y, when he stopped attending school. The Council has made a payment for missed education and its is unlikely we could add to the Council’s investigation. We cannot investigate the Council’s initial decision not to carry out an assessment because Mr X appealed. We will not investigate complaints about the content of the Education Health and Care plan the Council later issued because it was reasonable for Mr X to use his right of appeal to the SEND Tribunal.

The complaint

1. Mr X complained the Council:
• refused to carry out an Education, Health and Care Needs Assessment for his son, Y, despite him being in year 6 and due to transfer to secondary school. Mr X said the Council refused to mediate and later conceded the appeal, but lied about dates and reasons for conceding;
• delayed issued an Education, Health and Care Plan for Y after conceding the appeal, and the Plan was flawed;
• failed to provide any alternative education for Y after he stopped attending school in February 2023, and refused to acknowledge the schools referral to its A2E service in summer 2023; and
• generally delayed assisting Y and his family to save money.
2. Mr X said the Council’s failings caused significant injustice to Y and his family, including:
• the loss of their business and sole source of income because Mrs X had to be a full-time carer for Y since he stopped attending school;
• the mental health of Y and Mrs X deteriorated, to the point Mrs X is no longer able to engage with the Council; and
• Y has missed out on education since February 2023.

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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. 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. 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’, 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. 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))

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How I considered this complaint

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

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My assessment

Needs assessment refusal and appeal

9. Mr X asked the Council to carry out an Education, Health and Care Needs Assessment for Y in September 2024. The Council refused the request in October 2024. Mr X lodged an appeal with the SEND Tribunal. He continued to communicate with the Council and requested mediation. The Council agreed to concede the appeal on 10 January 2024, but this was not agreed with the Tribunal until early February 2024.
10. We cannot investigate complaints where a person has appealed to the SEND Tribunal. We cannot investigate the Council’s decision to refuse to carry out the assessment, nor can we investigate its reasons for conceding or the related communications.

Delay in issuing EHC Plan

11. The Council agreed to carry out the assessment on 10 January 2024. The statutory timescales say it should issue a final Education, Health and Care (EHC) Plan within 14 weeks of the consent order, which was on 5 February 2024. The Council issued a final EHC Plan for Y on 26 April 2024, which was 15 weeks after agreeing to assess, and 11 weeks after this was agreed with the Tribunal. Although there was a delay in telling the Tribunal it had agreed to assess, even if we calculate the statutory timescales from the date it agreed with Mr X to do so, the Council only missed the statutory deadline by one week. Having considered the provision in the EHC Plan, and the overall circumstances, including that Y was not attending school at the time, I do not consider that one week’s delay caused a significant injustice. Therefore, we will not consider that part of the complaint further.
12. Mr X also complained the EHC Plan was flawed. Mr X had the right to appeal to the SEND Tribunal if he was unhappy with the support set out in section F of the EHC Plan or the educational setting named in section I. It was reasonable for him to do so. In any case, the Ombudsman is not able to say what support Y needs or what setting is suitable for him. Therefore, we will not consider that part of the complaint further.

Alternative education

13. Y stopped attending school on a full-time basis in February 2023. The Council said it became aware he was not attending in June 2023 and agreed the school could make a referral to its A2E service to consider whether it had a duty to provide alternative education. Mr X says the school did contact A2E but did not get a response.
14. In early October 2023, the Council’s inclusions service attended a meeting at the school to discuss the steps the school had taken to reintegrate Y back into school. The Council’s record noted the school had been struggling to contact the A2E service.
15. The Council said it received a formal referral for A2E in January 2024. Also in January 2024, Y’s GP sent a letter saying Y could not attend school due to “autistic burnout”.
16. Statutory guidance says schools need to be aware of their responsibilities when mental health issues are impacting on a child’s absence. It says a council does not need to become involved in such arrangements unless it has reason to believe the education being provided by the school is unsuitable.
17. In this case, the Council considered the support Y’s school was offering to help him return to school. It agreed to consider whether it had a duty to provide alternative education, but there was a delay in it doing so because it did not receive the information it needed until January 2024. Although I am concerned the Council was not proactive in considering its section 19 duty between October 2023, when it was on notice of the difficulties the school was having in contacting A2E, and January 2024 when it received the formal referral, I note there was no medical evidence to show Y was not able to attend school with support until then. The fact that Y had been diagnosed with autism and ADHD would not, on its own, show Y could not attend school with appropriate support. Even if we carried out further investigation, it is unlikely we would be able to say, even on balance, the Council would have decided it had a duty to provide alternative education prior to January 2024 if it had considered the matter earlier.
18. In its complaint response the Council accepted it should have arranged alternative education in January 2024, but this was not in place until June 2024. It apologised, offered a payment of £3,600 for missed education for the benefit of Y and offered £300 to Mr X for his time and trouble pursuing the matter. These payments are in line with our Guidance on remedies. The payment was made in August 2024.
19. Based on the above, we will not investigate this part of the complaint further because it is unlikely we could add to the Council’s investigation.

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Final decision

20. We will not investigate Mr X’s complaint about alternative provision because it is unlikely we can add to the Council’s investigation. We cannot investigate the complaint about the Council’s initial refusal to carry out an assessment because Mr X appealed that decision. We will not investigate the complaints about the content of the final Education Health and Care Plan issued because it was reasonable for Mr X to appeal.

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Investigator's decision on behalf of the Ombudsman