Summary: Miss X complained that the Council failed to secure provision listed in Y’s Education, Health and Care Plan between September 2023 and November 2024. We do not find the Council at fault.

The complaint

1. Miss X complains the Council failed to secure Speech and Language Therapy (SALT) provision set out in her son, Y’s Education, Health and Care (EHC) Plan between September 2023 and November 2024 and failed to secure any provision at all between September 2024 and November 2024. Miss X says this has caused her real upset and distress and has impacted Y’s development.

Back to top

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 law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
4. 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)
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

7. We cannot usually investigate complaints unless we are satisfied the Council has had a chance to look into them first. This includes events that are linked to or ongoing from the complaint that has been brought to us.
8. For this reason, I have investigated Miss X’s complaint, as set out in paragraph 1 above up to the point she brought her complaint to the Ombudsman in November 2024.
9. I am aware Miss X has raised a further complaint about issues that have occurred since that time, but I have not addressed those in this decision.

Back to top

How I considered this complaint

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

Back to top

What I found

Duty to secure EHC Plan provision

12. A child or young person with special educational needs (SEN) 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 SEND tribunal or the council can do this.
13. Councils have a duty to secure the named special educational provision in an EHC Plan for a child or young person. The Courts have said councils owe the duty to arrange provision personally to the child and this is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)

Alternative provision

14. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.

How the law applies when appeal rights have been engaged

15. The courts have established that if someone has appealed to the SEND 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)
16. 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.
17. 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). 

What happened

18. I have summarised below some key events leading to Miss X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
19. The Council issued an EHC Plan for Y on 13 September 2023. Y’s EHC Plan named School A and set out what support was needed to meet his needs, and provided for a four-month SALT review with two hours of assessment and observation.
20. On 28 September 2023, Miss X appealed the content of Y’s EHC Plan to the SEND Tribunal.
21. The Council has said provision was in place for Y at School A and has provided records to show his attendance was 80% for the academic year 2023/24.
22. In December 2023 a SALT assessed Y’s needs. The SALT report was provided to the SENDIST panel along with further updates to be considered with Miss X’s appeal.
23. Following an annual review, a new EHC Plan was issued for Y in September 2024. This named School A and provided for 1-1 support at all times, two 10-minute language sessions daily, two 15-minute Occupational Therapy (OT) sessions per day, five 20-minute intervention sessions weekly working on a programme provided by a SALT, and direct 40-minute SALT sessions once per half term.
24. As she disagreed with the decision to name School A and had an appeal outstanding, Miss X did not send Y back to School A in September 2024.
25. The Tribunal then heard Miss X’s appeal and ordered the Council to amend Y’s EHC Plan. In November 2024, within five weeks of the Tribunal order, the Council issued a new EHC Plan for Y. This mirrored the provision of the EHC Plan from September 2024, but named School B.

Analysis

26. From the start point of my investigation in September 2023, the Council had secured a place for Y at School A. Y attended School A throughout the academic year 2023/24, but did not return in September 2024. The Council was aware Y did not return to School A, but there are restrictions on what I can consider here.
27. Because Miss X had appealed to the SEND Tribunal about the decision to name School A in Y’s EHC Plan in September 2023, I cannot investigate from then up until the Tribunal ordered EHC Plan was issued in November 2024, which is the end point of my investigation. This is because the reason for Y’s non-attendance from September 2024 was linked to Miss X’s disagreement about the special educational provision and the educational placement.
28. Miss X has said the Council failed to secure the SALT provision from Y’s EHC Plan. However, Miss X had appealed this plan so the Council was not bound to secure the provision within it. As the EHC Plan from September 2023 was Y’s first EHC Plan, there was no pre-existing provision for the Council to secure so I cannot find it at fault here.
29. While a SALT visited Y in December 2023, their report was provided to the SEND Tribunal for consideration with Miss X’s appeal. This appears to be linked to Miss X’s appeal rather than EHC Plan provision Y was entitled to. I cannot make findings about elements of Miss X’s complaint that are intrinsically linked to the appeal she made to the SEND Tribunal, so I cannot find the Council at fault here.

Back to top

Decision

30. I do not find the Council at fault and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman