Summary: We will not investigate Mrs X’s complaint about the education provided for her son from 2020 to 2022. This is because we have already considered the matter and decided not to investigate it. We will not investigate further Mrs X’s complaint about the Council refusing to take a new complaint. But we have investigated Mrs X’s complaint about the Council’s support for her son's special educational needs from September 2022 to June 2023, including a delayed review of his Education, Health and Care Plan. We uphold the complaint due to a delay in the Education, Health and Care Plan review. The Council has agreed to our recommendations.

The complaint

1. The complainant, Mrs X, complains:
• about the support provided for her son’s (Y) special educational needs from 2020 to 2022. She says the Council failed to provide Y with suitable full-time education and to make reasonable adjustments to allow him to access the educational provision available to him;
• that following a Tribunal’s decision against Y’s school, the Council refused to accept a complaint about issues the Tribunal considered. But the Tribunal decision was new information, meaning the decision was not late. The Tribunal advised it could not look at some issues that were part of the complaint. And the issues of discrimination raised by the Tribunal’s decision meant the Council should have reviewed the issue;
• the Council did not provide Y with suitable education from September 2022 to June 2023 and failed to carry out an annual review of his Education, Health and Care (EHC) Plan for two years. It did not properly support her when she was electively home educating Y.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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)
6. 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.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
8. 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)

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How I considered this complaint

9. I considered evidence provided by Mrs X and Council as well as relevant law, policy and guidance. I have also considered documents Mrs X sent me relating to her appeal against Y’s school.
10. I have issued two draft decisions to Mrs C and the Council and considered the responses I received.

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What I found

Educational provision from 2020 to 2022

Legal and Administrative background

11. A child or young person with special educational needs may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this.
12. 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). 
13. The Council’s Corporate Complaints Policy says it cannot consider a complainant if, among other reasons, if it:
• related to issues that happened more than 12 months before the complaint, unless there were good reasons why the complainant could not have complained earlier;

• “…falls within the scope of legal processes, other procedures or appeals”.

What happened

14. We have previously considered a complaint from Mrs X about the suitability of the educational support provided by the Council from 2020. We declined to consider the complaint because we felt the issues Mrs X had raised were not sufficiently separate from those considered by a SEND Tribunal.
15. Mrs X has since appealed to the SEND Tribunal against the school’s provision of education for her son, claiming it discriminated against him because of his disability. In 2024, the Tribunal upheld the complaint. It noted that it would not have usually considered a discrimination claim, but had considered Mrs X’s appeal, as it was specifically related to the Covid 19 lockdown periods. The school conceded the appeal and apologised to Mrs X.
16. Mrs X’s view is the Council should have taken a complaint from her about Y’s educational support between 2020 and 2022, as the Tribunal decision was new information. She also noted it raised important issues of discrimination. The Council refused to consider the complaint as it related to issues that had occurred more than 12 months before Mrs X’s complaint.

Analysis

17. While the Tribunal’s decision is new information, our earlier decision dates back almost four years and we will not revisit it now. In accordance with our data retention policy our records from this time have been destroyed so while we do retain a copy of the decision we do not have any records to show how the decision was made. The Tribunal has clearly considered issues which overlap with the complaint Mrs X made to us, and which she asks us to consider now. The new information does not show the decision was incorrect at the time. Had Mrs X felt it was, it would have been reasonable for her to request a review.
18. With Mrs X’s complaint about the Council not taking a new complaint, the Council has followed its own complaints policy. As I see no fault in how the Council reached its decision, the Ombudsman cannot consider it.
19. The Tribunal’s decision was specific to a particular period of time, so does not provide evidence of possible wider fault outside that period.
20. Mrs X says the Ombudsman should consider the complaint as she has no other remedy. But caselaw has confirmed that that in itself is not a reason for us to consider a complaint, so does not provide reasons for us to now consider the issues Mrs X raises.

The complaint about the period from September 2022 to June 2023

Legal and administrative background

21. Councils have duties to ensure SEN provision is in place to children of compulsory school age who are being electively home educated (EHE).
22. The end of compulsory school age in the UK is the end of the school year in which a child turns 16. This is usually the end of year 11, but remains the same if a child is being educated out of their chronological year group. 
23. The SEND Code of Practice is statutory guidance published by the Department of Education. It says young people may also be educated at home in order to meet the requirement to participate in education and training until the age of 18. Local authorities should involve parents, as appropriate, in the reviews of EHC Plans of home-educated young people who are over compulsory school age.
24. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews.
25. The council must decide whether to conduct a reassessment of a child or young person’s EHC Plan if this is requested by the child’s parent, the young person or their educational placement. The council may also decide to complete a reassessment if it thinks one is necessary.

What happened

26. In March 2021, the Council had amended Y’s EHC Plan, following a SEND Tribunal decision. That decision had agreed that Y would be educated in the year below his chronological age. Y’s compulsory school age ended in July 2022.
27. In April 2022 Mrs X emailed the Council to advise Y would not be returning to his school in September as the experience was too traumatic for him. She named schools she thought would be better suited to him.
28. In May Mrs X emailed the Council naming ways in which she believed the school was not following Y’s EHC Plan.
29. In September 2022 Mrs X advised the Council she would be homeschooling her son, as he would not be returning to the school he had previously attended. She asked the Council about an update on consulting one of the schools she had named in her April email.
30. In October, November, December 2022 and January 2023 Mrs X emailed the Council asking for an update. Its March response apologised for the delay. Its caseworker advised she would be happy to arrange an annual review of Y’s EHC Plan. The caseworker also asked about Y’s plans from September 2023, when he was due to finish at the school named on his EHC Plan.
31. In June the Council finalised Y’s EHC Plan.
32. In August 2023 Mrs X and her family decided to move away from the area.
33. In January 2024, Mrs X complained. The Council declined to investigate events from more than 12 months before the complaint. It apologised for some delay in responses to communications.
34. Mrs X complained to the Ombudsman. Our initial view was we would not investigate this part of the complaint as it was late (see paragraph 4). Mrs X’s response explained she had been ill herself which had affected her ability to complain earlier. We accepted those reasons and so decided to investigate further.

Analysis

EHC Plan

35. The Council has accepted a delay in updating Y’s EHC Plan following the change. My decision is that delay was fault.
36. The Council should have carried out an annual review of Y’s Plan in March 2022. It should also have been prompted to contact Mrs X in May and September 2022, following her contacts about the school not following the EHC Plan. She chased responses but it was not until March 2023 that a Council officer replied. The Council then began a review of Y’s EHC Plan, resulting in a new plan in June 2023. My decision is those delayed communications were fault.
37. Given the time that has passed I cannot now say whether things might have been different. Or if Y missed any educational provision because of the fault I have identified. But this does create an injustice to Mrs X and Y of some uncertainty about whether things might have been different but for the faults.

Elective home education

38. Mrs W says she is concerned the Council did not check on Y when she decided to home educate him. She also complains about the delayed updating of Y’s EHC Plan following her decision to homeschool him.
39. The Council did not have a statutory duty to check on the SEN provision of a child who was being electively home schooled. But it did have the discretion to have done so. The delay in the review of Y’s EHC Plan likely contributed to a delay in it considering this.
40. On the balance of probabilities, it is likely Y was not at a safeguarding risk at home. And it is likely Mrs X was doing her best to ensure his SEN needs were met. So I do not see any extra uncertainty beyond the uncertainty caused by the delay in reviewing Y’s EHC Plan.

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Agreed action

41. The Council has agreed that, within a month of my final decision, it will take the following actions.
• Write to Mrs X apologising for the faults I have identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Make Mrs X a symbolic remedy of £400 for the delay in reviewing Y’s EHC Plan and the uncertainty this caused.
42. The Council should provide us evidence it has complied with the above actions.

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Final Decision

43. I find fault because of the delayed updating of Y’s EHC Plan. The Council has agreed to my investigation, so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman