Summary: I have not found evidence of fault by the Council in failing to secure special educational provision in an Education, Health and Care Plan between January and June 2024. I cannot investigate the period June to October 2024; this is outside our jurisdiction due to an overlapping appeal to Tribunal.

The complaint

1. Ms X complains the Council failed to secure provision in her son’s Education, Health and Care (EHC) Plan:
• When he attended a special school between January and June 2024;
• When he stopped attending his placement in June 2024, until an amended EHC Plan was issued after a Tribunal decision in October 2024.
2. Ms X says as a result her son missed out on education.

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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. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)
6. 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.
7. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
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(1), as amended)

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How I considered this complaint

9. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
10. 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

Factual background

11. In 2023 Ms X’s son was attending Setting A. An annual review took place in Summer 2023, and the Council issued an amended final EHC Plan in Autumn 2023. Ms X appealed this Plan to the Tribunal. Ms X’s appeal was about Sections B (needs), F (provision), I (setting) and about health and social care matters. Ms X wanted her son to attend College B.
12. In October 2023 an early review was held which led to a further amended final EHC Plan being issued in February 2024 naming College B as a 38-week residential placement. Ms X’s child started College B, but Ms X continued her appeal about other aspects of the EHC Plan.
13. The Council told me it satisfied itself special educational provision in the Plan was secured at College B via the college preparing a comprehensive assessment, prior to offering a place, showing it could meet need and a costed plan. This was a high-cost specialist residential placement.
14. Ms X started to raise concerns about the education and care at College B in March 2024. The Council has provided me with notes of a meeting in March when concerns about medication and therapy were raised by Ms X. The College said it was usual to allow a new learner to settle into their timetable and provision was built up gradually so as not to be overwhelming for Ms X’s child. College B said speech therapy was already in place, and the curriculum and therapies were delivered through a practical skills education programme which Ms X’s child was engaging with.
15. The Council visited the college in response to Ms X’s concerns in April. The officer spoke to Ms X’s son during the visit and visited his housing. The outcome of the visit was the Council had no concerns about the provision. The Council said the college told them that occupational therapy had started.
16. A week later a 6-week review meeting was held which the Council attended.
17. In April a request was made to adjourn the appeal hearing. The Tribunal documents show while the appeal had originally included a request by Ms X that her son move from Setting A to College B, that move had now happened. Ms X’s son was now stating ‘this was not working for him’. Ms X now did not agree to College B being named on the EHC Plan. On this basis the Tribunal agreed to adjourn so Ms X could consider alternative placements. The Tribunal noted evidence was not available from College B, and said if the Council still proposed to name College B, then a representative from College B would need to attend the final hearing.
18. The Council says a decision for Ms X’s son to stop attending College B was made by Ms X in June 2024 because she considered attendance was causing distress. The Council told me it visited College B in July and found no substantial issues.
19. The Council’s position remained that College B should continue to be named on the EHC Plan. This was also College B’s view. At the hearing in Autumn 2024, Ms X’s son made it clear he would not return to College B and the Council conceded during the hearing College B could no longer meet needs given his view.
20. The Tribunal ordered the Council to provide a package of Education Otherwise than in College (EOTIC) under s.61 Children and Families Act 2014 and to amend the EHC Plan.
21. Ms X made a formal complaint in September 2024 that some of the provision in the EHC Plan, such as occupational therapy (OT), had not been in place at College B and no education was provided after June 2024.
22. Ms X says OT was finally raised by the Council with College B in August 2024. The College then told the Council its staff were trained and had a programme in place. Ms X said this did not meet the criteria set out in the Plan.
23. The Council provided a complaint response in December, but this did not address the issues raised while Ms X’s son had attended College B but referred to more recent events which are outside the scope of this investigation.

Relevant law and Guidance

24. 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. 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 Tribunal or the council can do this. 
25. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement.

26. 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)  
27. We consider it is not practical for councils to keep a ‘watching brief’ on whether settings are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

28. 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.
29. 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)
30. This means that if a child or young person is not attending school or college, 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.
31. 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.
32. 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: 

• delays in the process before an appeal right started;
• support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to an appeal that has, or should have, happened; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the Tribunal.  

33. 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). 

Analysis

What I have and have not investigated

34. I have investigated only the period January to June 2024 for the following reasons.
35. I have investigated the alleged missed special educational provision while Ms X’s son attended a specialist residential college between January and June 2024. While there was an ongoing appeal (against an EHC Plan issued in Autumn 2023) this did not alter the duty to deliver the special educational provision at the college both parties, at that time, agreed Ms X’s son should attend and where he was attending.
36. I have not investigated lack of education from when Ms X removed her son from College B in June 2024, until the Council issued an amended EHC Plan naming a different placement in October 2024 after a Tribunal order to do so. The Council’s position up to October was that College B remained suitable for Ms X’s son to attend. Ms X disagreed the placement was suitable and raised this as part of her appeal to the Tribunal as early as April. This means the Ombudsman has no discretion to consider loss of education between June 2024 and October 2024. The decision to continue to name College B was a matter before the Tribunal. The consequence of the Council continuing to name College B, when Ms X considered this unsuitable, was that her son did not attend after June. The law says we cannot investigate a decision that is the subject of any appeal, or the consequences of such a decision.

Special educational provision February to June 2024

37. The Council did satisfy itself through the consultation process, and in agreeing a high level of funding, that College B could meet the needs in the EHC Plan. It agreed a budget that covered the college buying in some provision and for OT costs.
38. The Council also had a duty under s.42 to check the provision had been secured once Ms X’s son started at the placement.
39. I do not know whether the Council would have checked with College B that all provision was in place of its own volition, but it did consider concerns Ms X raised in March and again in April, including visiting the college and speaking to Ms X’s son and then attending the 6 week review. The Council did not have concerns about the provision. The Council records confirm it received assurance OT was in place. The Council visited again in July, and again found no concerns.
40. The Council did rely on statements made by the College, which I acknowledge Ms X disputes. We cannot look at the actions of the College, only the Council. If the College mispresented the situation this is not fault by the Council.
41. In her response to my draft decision Ms X has raised concerns about safeguarding matters and about the residential care element of the package. This is outside the scope of this investigation which is about the special educational provision in Section F of the EHC Plan.
42. I find no fault by the Council. Our expectation when a Council becomes aware of a concern about provision is that it follows this up with the college. The Council did so and was reassured in March that all provision was, or would shortly, be in place and that a gradual build-up had been in the student’s interests. The Council visited in April to investigate Ms X’s concerns and also attended a 6 week review. The Council was satisfied with the provision. Ms X’s son then stopped attending the placement shortly afterwards.
43. There was discussion about OT in the summer, but this was inconclusive in that Ms X’s views and those of College B differed about what had been provided. As Ms X’s child was not attending College B there was no action for the Council to pursue with College B unless and until Ms X’s child resumed attendance.

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Decision

44. I find no evidence of fault.

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Investigator's decision on behalf of the Ombudsman