Summary: Miss X complained about the Council’s conduct during her appeal to the First-tier Tribunal (Special Educational Needs and Disability) about her child D’s Education, Health, and Care Plan. She also said the Council failed to ensure D received the Education, Health, and Care Plan provision while her appeal was ongoing. We cannot investigate how the Council conducted itself during the Tribunal appeal process. However, the Council failed to ensure D received special educational needs provision while the appeal was ongoing. This fault caused D to miss provision, and distress to D and Miss X. The Council agreed to apologise, pay a financial remedy, and review its processes for checking Education, Health, and Care Plan provision is in place.

The complaint

1. Miss X complains the Council delayed in amending her child D’s Education, Health, and Care (EHC) Plan after she appealed about the Plan to the First-tier Tribunal (Special Educational Needs and Disability) in June 2023. She also says the Council failed to ensure D received the provision in their latest final EHC Plan while the appeal was ongoing, from June 2023 to October 2024.
2. Because of this, Miss X says D missed special educational needs provision, causing them distress. She also says the issues caused her distress when she was already experiencing health problems.
3. Miss X wants the Council to remedy the distress caused to the family.

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The Ombudsman’s role and powers

4. 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)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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)
7. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
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 Miss X and the Council and relevant law, policy and guidance.
10. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
11. 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 found

Legislation and guidance

Education, Health, and Care (EHC) Plans

12. 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.
13. 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)  

EHC Plan appeal rights

14. 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.
15. There is a right of appeal to the Tribunal against a council’s:

• decision that it is not necessary to issue an EHC Plan following an assessment; and
• description of a child or young person’s SEN, the SEN provision specified, the school or placement specified, or that no school or other placement is specified, in the EHC Plan.

16. We cannot direct changes to the sections of an EHC Plan about a young person’s needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
17. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
18. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
19. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  
20. The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699 (‘Tribunal Procedure Rules’) give the Tribunal the power to do the following.

• Regulate its own procedure. The Tribunal Procedure Rules give the Tribunal extensive case management powers. 
• Take ‘such action as it considers just’ if a party fails to comply with a requirement in the Tribunal Procedure Rules, a Practice Direction or a direction by the Tribunal. 
• Make an order for costs if it considers a party has acted unreasonably in bringing, defending or conducting proceedings. 

21. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, we can look at a complaint that support in an EHC Plan was not delivered, if we decide the reason it was not delivered is not connected to an appeal.

What happened

22. In 2021, Miss X asked the Council to carry out an Education, Health, and Care (EHC) needs assessment for D, because she felt D needed an EHC Plan. The Council assessed D and decided it should not issue D with an EHC Plan. Miss X appealed against this decision to the SEND Tribunal. In early 2023, the Tribunal ordered the Council should issue D an EHC Plan.
23. In June 2023 D was at the end of year 6. Following the Tribunal order, the Council issued D with a final EHC Plan, naming a mainstream secondary school placement for the following school year. Miss X appealed the content of the EHC Plan to the SEND Tribunal because she did not agree with the school placement. She felt D should have a special school placement.
24. D started year 7 at the mainstream secondary school in September 2023. Miss X said the school did not put in place the SEN provision in D’s EHC Plan. She said she made the Council aware of this towards the end of 2023.
25. While the Tribunal appeal process was ongoing, the Council agreed to arrange an updated Educational Psychologist (EP) assessment for D. A Tribunal hearing was initially scheduled for the end of April 2024. Miss X asked the Tribunal to postpone the hearing so the updated EP information could be considered, and amend her appeal grounds to include both the named school and the SEN provision. The Tribunal agreed to this and rescheduled the hearing for September 2024.
26. In July 2024, Miss X complained to the Council. She said it had received the new EP report in May 2024 but made no progress since in amending the EHC Plan. She also said she had expressed her preference for special school placements, but the Council had not updated her about whether it had consulted these schools to be named in the EHC Plan. The Council responded to Miss X’s complaint a month later. It said:
• the upcoming September 2024 Tribunal hearing would decide about any changes to the EHC Plan; and
• regarding concerns Miss X had raised about the current school’s implementation of the EHC Plan, it was committed to working with Miss X and the school to resolve the issues. However, it considered this issue to be “inextricably linked” to Miss X’s ongoing Tribunal appeal which was yet to be resolved.
27. In September 2024 D started year 8. They were still at their mainstream school as the Tribunal process was still ongoing. In mid-September 2024, the Tribunal issued its decision. It said:
• D needed a special school placement so the Council should specify the type of school in the EHC Plan as a special school. However, it noted the Council had delayed in consulting schools so by the hearing there was no specific placement identified;
• Miss X and the Council had agreed to some changes to the SEN provision set out in the Plan. The Tribunal set out its decisions about other aspects that remained in dispute; and
• the Council had not complied with the case management conditions set by the Tribunal earlier in the process because it had not provided documentation or consulted schools on time.
28. After the Tribunal decision, Miss X asked to escalate her Council complaint to Stage 2. She referred to the Tribunal’s comments about delays by the Council during the Tribunal process. The Council had said this was due to staffing issues and Miss X said she did not accept its explanation about this and wanted to complain further about the impact these delays had. The Council responded a week later. It said it considered it had provided a complete response to Miss X’s complaint at Stage 1. It would now amend D’s EHC Plan in line with the recent Tribunal order.
29. Miss X brought her complaint to the Ombudsman in October 2024. A couple of weeks later, the Council identified a special school placement and issued an amended EHC Plan for D, in line with the Tribunal’s September 2024 order.

What I have and have not investigated

30. Part of Miss X’s complaint is about delays in amending the EHC Plan, including consulting schools, after she appealed the June 2023 EHC Plan to the SEND Tribunal. This is a complaint about the Council’s conduct during the Tribunal appeal. As explained at paragraphs 17 to 20, this is not something the Ombudsman can investigate. The Tribunal has wide ranging powers to regulate its own procedure, take action where a council fails to comply, and make orders for costs where it considers necessary. The Tribunal already considered and commented on the Council’s conduct during its proceedings.
31. The Ombudsman cannot consider the actions of the Council from the point the appeal right arose (that is, the point it issued the June 2023 Plan), up to the point of the Tribunal’s decision in September 2024.

My findings

32. The June 2023 EHC Plan set out the provision D should receive. The Council still had a duty to deliver the SEN provision it had specified in this Plan while the Tribunal appeal was ongoing.
33. The Ombudsman recognises it is not practical for councils to keep a ‘watching brief’ on whether every pupil with an EHC Plan is receiving all their SEN provision. However, we consider councils should be able to demonstrate due diligence in discharging this important legal duty. As a minimum, the Council should have systems in place to:
• check the special educational provision is in place when it issues a new or substantially different EHC Plan, or there is a change in educational setting;
• check the provision at least annually via the EHC Plan review process; and
• investigate complaints or concerns that provision is not in place at any time.
34. Miss X said she raised concerns with the Council about delivery of D’s EHC Plan from December 2023. Regardless, we would expect the Council to check the provision in the new EHC Plan was in place, after it issued it in June 2023, especially as D was starting a new secondary school placement. I have seen no evidence the Council checked the provision was in place once D started at the school. It is also clear from the Council’s complaint response it did not properly investigate and respond once Miss X raised concerns about this. This was fault.
35. As the Council failed to properly investigate whether the EHC Plan provision was in place, Miss X provided us with evidence of enquiries she made with the school about this herself. Based on the response provided by the school, I decided on the balance of probabilities that D did not receive most of the key support and interventions outlined in their EHC Plan. This means the Council’s failure to check provision was in place, or investigate once Miss X raised concerns, meant D missed provision they were entitled to.
36. As set out in our guidance on remedies, where we find fault has resulted in loss of educational provision (for example where a child is out of school), we usually recommend a payment of £900 to £2,400 a term to recognise the impact of that loss. Where there has been a loss of SEN support, such as direct therapies and interventions, the level of financial remedy is likely to be lower than that for loss of educational provision. We consider the level of SEN provision missed and the impact of this on the child.
37. In deciding an appropriate financial payment to recognise the impact of D’s missed SEN provision, I considered the following.
• During this period, D was in years 7 and 8 of secondary school. Our guidance on remedies says we consider the first year of secondary school to be one of the most significant periods in a child’s school career.
• D missed in-class support such as visual resources, and key therapies and interventions such as direct emotional coaching and SEMH (social, emotional, and mental health) sessions. This may have had a significant impact on their ability to access and engage with their education.
38. The Council should provide a financial remedy of £600 per term for the approximately four terms of SEN provision D missed. This is from the point the Council issued the June 2023 EHC Plan, up to the amended Plan naming a new school in October 2024. It should also make a further payment to recognise the distress caused to Miss X by the Council’s failure to properly investigate her concerns that provision was not in place.

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Action

39. Within one month of our final decision the Council will:
1. apologise to Miss X and D for the faults identified and the impact of those faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology;
2. pay the family a total of £2,600, comprising of:
1. £2,400 to recognise the four terms of SEN support D missed; and
2. £200 to recognise the avoidable distress caused to Miss X by the Council’s failure to properly investigate her concerns that provision was not in place.
40. Within three months of our final decision the Council will decide what changes are needed to its EHC Plan processes or staff training to ensure it has systems in place to:
1. check provision is in place when it issues a new or substantially different EHC Plan, or there is a change in educational setting; and
2. properly investigate complaints or concerns that provision is not in place at any time.
41. The Council will provide us with evidence it has complied with the above actions.

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Decision

42. I find fault causing injustice. The Council agreed to my recommendations about actions it should take to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman