Summary: Mrs X complained that the Council failed to provide a proper education to her daughter, and caused delays when deciding her special educational needs support. We have found fault with the Council because it caused a short delay amending Mrs X’s daughter’s support. But this did not cause her a significant injustice. And we cannot comment on the other matters because they are linked to something which could have been appealed to the SEND Tribunal.

The complaint

1. Mrs X complains that:
• Her daughter, Y, was out of education from January 2024. Her school could not meet her needs.
• The Council did not find a new school for Y. It should have found a special school to reflect the fact that her existing school could not meet her needs.
• The Council also failed to deliver alternative education for Y while she was out of school.
• The Council caused delays throughout 2024 while deciding the support Y should receive for her special educational needs.
2. Mrs X says Y lost education, and the whole family suffered distress. At the time of complaining to us, Mrs X wanted the Council to find a special school for Y to attend.

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The Ombudsman’s role and powers

3. 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 a council’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)
4. The law says we cannot normally investigate a complaint when someone has (or had) 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 (or to have used) 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 Tribunal in this decision statement.

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What I have and have not investigated

6. The law says 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)
7. This means that if a child is not attending school, and the reason for non-attendance is as a consequence of – or is even linked to – a disagreement about the suitability of the child’s placement or their special educational needs provision, we cannot investigate a lack of such provision, or a lack of alternative education while they are out of school.
8. Y’s non-attendance at school appears to have been at least partly linked to a disagreement about the suitability of the school. As Mrs X could have appealed to the Tribunal about this (and as it would have been reasonable to expect her to do so), I cannot investigate her complaint about the school or about Y’s lack of alternative education.
9. I have, instead, limited my investigation to the final point of Mrs X’s complaint (delays to the Council’s decision-making on Y’s special educational needs support).

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How I considered this complaint

10. I considered evidence provided by Mrs X and Council as well as relevant law, policy and guidance.
11. Mrs X and 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

12. A child with special educational needs may have an education, health and care (EHC) plan. This document sets out their needs and what arrangements should be made to meet them.
13. Statutory government guidance (the ‘SEND code of practice’) says that, within four weeks of an annual review, the council must write to the child’s parent and tell them whether it has decided to keep the EHC plan as it is, amend it or cease it.
14. If the council has decided to amend the plan, it must issue a new one within a further eight weeks.
15. Y’s school held an annual review for her in late January 2024. The Council told Mrs X it would amend Y’s EHC plan in early March (a week late). It then issued her amended plan – naming the same school – in mid-April (not late).
16. The school held a further review in mid-June. The Council told Mrs X it would amend Y’s EHC plan, again, in early July (not late). It then issued her amended plan – again, naming the same school – in mid-September (around two and a half weeks late).
17. This means there were around three and a half weeks of delays across the two amendment processes.
18. This was fault by the Council. However, as the delays were relatively short, and as neither amended plan actually achieved what Mrs X wanted (a new school for Y), this did not cause Y an injustice.
19. Consequently, I will not recommend that the Council takes any remedial action.

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Decision

20. 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