Summary: We will not investigate Mrs X’s complaint about delays in the Education, Health and Care (EHC) process because there is insufficient evidence of fault. We cannot investigate Mrs X’s complaint that the Council’s failed to deliver the content of Y’s EHC Plan because Mrs X has appealed to a Tribunal, and the matters appealed are not separable from the complaint. We will not investigate the Council’s failure to provide full-time alternative education to her child, Y, because any injustice caused is not significant enough to warrant an investigation.

The complaint

1. Mrs X complained the Council:
• failed to complete the Education, Health and Care (EHC) process in line with statutory timescales;
• failed to deliver the content of Y’s EHC Plan to them; and
• failed to provide full-time alternative education to Y when Mrs X said they became too unwell to attend school.
2. Mrs X says the matter has caused her frustration, distress, and uncertainty.

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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 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.
5. 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)
6. 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.
7. 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:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

8. I considered information provided by the complainant.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. Mrs X has a child, Y. In 2023, Mrs X lived in another authority’s area. She asked the original authority to complete an EHC needs assessment of Y. The authority agreed and started the assessment process.
11. During the EHC needs assessment, Mrs X moved to this Council’s area. In late February 2024 the original authority transferred the in-progress EHC assessment to this Council.
12. Mrs X wrote to the Council in late March 2024. She told the Council Y required alternative provision because Y was too unwell to attend school.
13. In mid-April 2024, the Council spoke with Mrs X, explored Y’s needs, and organised some tutoring for Y.
14. In mid-May 2024 the Council issued a final EHC Plan for Y. The EHC Plan left section I (the named school) blank, but detailed Education Other than at School (EOTAS) in section F. The EOTAS provision included three hours of 1:1 and three hours of online learning.
15. Mrs X complained to the Council and the Council responded and told Mrs X:
• it considered her request for alternative provision in March 2024;
• it organised three hours of in-person tuition, offered five hours of online work, and access to an educational centre to deliver the content of Y’s EHC Plan, but Mrs X decided not to engage in the offers made and instead wait for a different type of alternative provision; and
• it would consider Mrs X’s request for Education Other than at School (EOTAS).
16. During the Ombudsman’s consideration of the complaint, Mrs X said she had engaged in mediation with the Council. She said she also made an appeal to the SEND Tribunal about the content of Y’s EHC Plan.

Analysis

Delay in EHC process

17. We will not investigate Mrs X’s complaint about delays in the EHC process. The SEND Guidance states while a child is being assessed for an EHC Plan and moves between areas, the new Council should complete the assessment “more quickly than it would otherwise have done”. The transfer is akin to a new EHC needs assessment request and the timescales restart at week 0. The full process from transfer to complete a final EHC Plan should not exceed 20 weeks.
18. The Council completed the full EHC process approximately 11 weeks after being notified by the original authority. Therefore, there is insufficient evidence of fault, and we will not investigate this complaint.

Delivery of section 42 and the content of Y’s EHC Plan

19. Mrs X disagrees with the amount of EOTAS provided to Y and the type of provision offered. She has appealed the content of Y’s EHC Plan to the SEND Tribunal.
20. We cannot investigate this complaint. The reason Y is not receiving the content of their EHC Plan is a consequence of the Council’s decision to specify a total of six hours of EOTAS and not to name a school in section I. Mrs X disagreed with the content of the EHC Plan and appealed to the SEND Tribunal. The matters are not separable, and therefore we cannot investigate.

Alternative education / section 19

21. We will not investigate Mrs X’s complaint that the Council failed to provide an equivalent full-time education to Y following her request in late March 2024.
22. The time between Mrs X requesting the Council provide alternative provision to Y and the Council issuing a final EHC Plan which included EOTAS was approximately seven weeks.
23. The Council said it spoke with Mrs X and she agreed a traditional teacher would be too much for Y during this period. The Council considered Mrs X’s request and later put in place provision which it thought Y could manage due to the circumstances. Therefore, any injustice is not so significant that we would investigate this complaint further.

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Final decision

24. We cannot investigate most Mrs X’s complaint because it relates to matters Mrs X can or has raised with a Tribunal. For the rest of the complaint, there is insufficient evidence of fault or significant injustice to warrant an investigation.

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Investigator's decision on behalf of the Ombudsman