Summary: Ms X complained the Council has failed to ensure her child, Y received an education or provision in line with their Education Health and Care (EHC) Plan since 2021 when they stopped attending school. I ended this investigation because part of the complaint is late and the other part falls outside of our jurisdiction because Ms X appealed to the SEND tribunal.

The complaint

1. Ms X complained the Council failed to provide provision, namely adult support, in line with her child, Y’s Education, Health and Care (EHC) Plan following an annual review in 2023.
2. Ms X said Y has not attended school since 2021 and requires key adult support for them to engage with education and the provision in the Plan.
3. Ms X said the matter is causing significant distress and is impacting on Y’s education and development.

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The Ombudsman’s role and powers

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. 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

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How I considered this complaint

6. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
7. Ms 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

Relevant law and guidance

EHC Plans and EHC needs assessments

8. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.

SEND tribunal

9. 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.
10. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
11. 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.
12. 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.
13. 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).
14. We cannot trespass in any way on the jurisdiction of the tribunal (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.

What happened

15. Ms X has a child, Y who is of secondary school age. Y has an EHC Plan which has been in place since 2020 which names a mainstream secondary school in section I (School 1). Y stopped attending school in 2021 due to a variety of factors which caused extreme anxiety.
16. The Council carried out an annual review of Y’s EHC Plan in 2023 and issued an amended EHC Plan in September 2023. The plan named School 1 in section I. Section F of Y’s EHC Plan outlined the specialist provision Y required which include support from a key adult worker.
17. Ms X appealed to the SEND tribunal in November 2023. She appealed against the specificity of the key worker provision in section F and about the naming of School 1 in section I which she said had made clear that it cannot meet Y’s needs. Ms X wanted the Council to provide a personal budget for an Education Otherwise than at School (EOTAS) package.
18. Ms X complained to the Council in 2024 about Y’s lack of education and provision in line with his EHC Plan. The Council responded at stage 1 and stage 2 of its complaints procedure and said it was working on the matter via the tribunal process.
19. Ms X remained unhappy and complained to us.
20. In November 2024 the SEND tribunal ordered the Council to amend Y’s EHC Plan in sections B, F and I. The result being Y’s Plan would have an EOTAS package in place.

My findings

21. I have not investigated events prior to late 2023 because they are late. It was reasonable for Ms X to have complained about events between 2021 and late 2023 much earlier and there are no good reasons for her not to have complained to us sooner.
22. The core of Ms X’s appeal to the tribunal is about the specificity of the key worker provision in section F and the Council’s decision to name School 1, a mainstream secondary school in Y’s EHC Plan. Ms X believes School 1 is not suitable and it cannot meet their needs. The consequence of which meant Y was not attending School 1 and therefore not receiving the provision outlined in the EHC Plan.
23. I cannot investigate the period September 2023 to November 2024 as it would result in me looking at the Council’s decision and reasoning to name School 1 in Y’s EHC Plan and interpreting the provision in section F. Investigating would therefore trespass on the tribunal’s jurisdiction. In line with the reasons explained in paragraphs 11-14 this period falls outside of our jurisdiction and is therefore not something I can investigate.
24. If Ms X has concerns about how the Council handled Y’s education and provision following the SEND tribunal order in November 2024 she should make a new complaint to the Council.

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Decision

25. I ended this investigation because part of the complaint is late and the rest falls outside of our jurisdiction.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman