Summary: Mr X complained his child Y did not receive educational provision from April 2023. Most of Mr X’s complaint is outside our remit because there was a right of appeal to the SEND Tribunal against the school placement the Council named on Y’s Education, Health and Care Plan of July 2023. School A offered to provide individual tuition at an off-site building in April 2023, which Mr X refused. So we did not uphold the complaint about a lack of education for Y. There was a two-week delay in amending Y’s Plan after an emergency annual review meeting. This was fault, but it did not cause significant injustice.

The complaint

1. Mr X complained his son Y has not received educational provision in his Education, Health and Care Plan (EHC Plan) since April 2023 when Y’s school advised it could not meet Y’s needs. He said this caused avoidable distress, affected both his and Y’s mental health and caused a loss of appeal rights and educational provision.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate any matter which was part of, was connected to, or could have been part of an appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
4. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is a consequence of parental disagreement with the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
5. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been a period of 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).
6. 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)
7. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

The period I have investigated: April to July 2023

9. I investigated Mr X’s complaint about the Council’s actions between April and July 2023. Although this is a late period, I have investigated because Mr X became unwell and so this was a good reason for part of the delay contacting us. I have not investigated matters from July 2023 when the Council issued Y’s final amended EHC Plan. My reasons are in paragraphs 10 to 13.
10. Mr X did not send Y back to School A after a serious incident involving Y in April 2023. The records indicate Mr X told council officers the risk was too high. Mr X disagrees on the suitability of School A. It was reasonable for Mr X to appeal the Council’s decision to name School A as Y’s placement in his amended EHC Plan of July 2023.
11. I have taken into account School A recommended a change of placement in the annual review meeting and said it could not meet Y’s needs and council officers said in May 2023 they intended to search for an alternative placement. This may have indicated to Mr X that there would be no need for him to appeal once he had a final amended Plan as there was no dispute Y needed a different school.
12. However:
• Mr X did not receive any information from the SEND Team between April and July 2023 with any consultations or responses suggesting the Council was not making serious attempts to find a new placement
• When the Council re-named School A in in the amended EHC Plan of July 2023 and had still not consulted formally with any potential placements, its actions went against the previous statements of officers in the review meeting
• Mr X sought legal advice in around May 2023. This indicates an awareness that the dispute may need to be resolved through a court or tribunal process.
13. The Council’s lack of action contrary to the statements of officers plus his seeking of legal advice about Y’s education makes it reasonable for Mr X to have used his statutory appeal rights to secure a different school placement for Y. Mr X says Y has a loss of education after July 2023, but the courts have confirmed that this lack of a remedy for Y does not mean the LGSCO should investigate.

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How I considered this complaint

14. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
15. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

16. A child or young person with special educational needs (SEN) may have an Education, Health, and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. Section I has the educational placement.
17. 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. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
18. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.
19. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  

What happened

20. Y has SEN and an EHC Plan naming a special school, School A in Section I. Y was receiving individual support of a teaching assistant (TA) at School A and two-to-one support at breaks and lunch times, which the Council funded.
21. Y assaulted another pupil at school at the beginning of April. An emergency annual review meeting took place shortly after the assault. The headteacher told the Council’s SEND team and Mr X that school could no longer meet Y’s needs due to risk and requested a change of placement. The headteacher did not give notice to end Y’s placement, but they said the Council would need to find another placement, this would not be a quick process and that another form of educational provision would need to be sought for Y meantime.
22. The headteacher of Y’s school emailed the SEND team in May saying he and Mr X discussed part-time tuition at an off-site building and had sent Mr X a video of the building proposed for tuition. An email from Mr X to the headteacher in the middle of May said “a few ad hoc hours in their room down the road is also unsuitable and failing in his right to a full-time education”
23. The Council issued a final amended EHC Plan for Y on 19 July 2023 naming School A as Y’s educational placement.
24. Mr X complained to the Council about matters raised in his complaint to us. Unhappy with the response to his complaint, he complained to the LGSCO.

Findings

25. There is no legal right to an emergency annual review, but in this case the Council agreed to one. It should have completed the review and amendment process within 12 weeks of the review meeting. The amendment process was completed outside the 12-week timeframe, which caused a two-week delay to Mr X receiving his right of appeal to the SEND Tribunal. This was fault, but the injustice is limited and does not require a remedy because Mr X did not use his appeal rights.
26. School A offered to provide Y individual tuition in an offsite building. Mr X refused. While he may have been unhappy this was not full-time provision, one to one education does not necessarily have to equate to the same number of hours as education in a classroom setting. The tuition was going to be provided by School A’s staff who were familiar with him. There are no grounds for me to criticise the Council. Actions were in line with the duty in section 42 of the Children and Families Act 2014 and would likely have secured the special educational provision on Y’s EHC Plan.

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Decision

27. I find fault not causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman