Summary: Mr X complained about issues securing alternative education and Education, Health and Care (EHC) Plan provision for his son, Y. He also complained about poor communication from the Council. Mr X said Y missed education and plan provision. We found communication from the Council was poor, frustrating Mr X. The Council should apologise.

The complaint

1. Mr X complained about issues securing alternative education and Education, Health and Care (EHC) Plan provision for his son, Y. He also complained about poor communication from the Council. Mr X said Y missed education and plan provision.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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. 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)

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What I have and have not investigated

5. I have investigated Mr X’s complaint from January 2024. I reference events before this for context in this matter.
6. I have not investigated earlier events as Mr X could have complained about them earlier. This is a late complaint and there is not enough reason to accept those parts of it for investigation now.

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How I considered this complaint

7. I read Mr X’s complaint and spoke to him about it on the phone.
8. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

10. 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.
11. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
12. 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. 
13. 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; and
• amendment to these elements of an EHC Plan.

14. 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)
15. 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.
16. 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.
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. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
19. Y has an EHC Plan. Y received some alternative provision in the area the family used to live. The Council continued the placement when the family moved to the Council area in 2023. The Council reviewed the EHC Plan in November 2023. Mr X asked for provision including physical activities and a mentor.
20. The Council told Mr X it would amend the EHC Plan in December 2023.
21. The Council issued the final EHC Plan at the end of January 2024.
22. Mr X chased the Council in March 2024. He said Y’s EHC Plan did not fully detail his difficulties. Mr X asked about an education setting for Y. The Council confirmed it consulted with two schools. One was too far away and the other could not meet Y’s needs. Mr X asked about other options for Y’s education.
23. Mr X chased the Council in May 2024. He said the Council was not providing an education provision. The Council apologised for not responding. It confirmed it was considering increasing the number of hours Y attended the alternative provision.
24. Mr X complained to the Council in July 2024. He complained the family moved to the area and the Council continued Y’s placement, but it was not an educational placement and the Council must seek an alternative school placement. He also complained about poor communication from the Council.
25. The Council responded to Mr X’s complaint in August 2024. The Council accepted communication was poor and apologised. The Council confirmed it would review the EHC Plan and consider alternatives for Y’s provision.
26. Mr X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mr X would like the Council to arrange education provision for Y.
27. In response to my enquiries the Council accepted communication was poor. The Council confirmed it continued the provision from the previous Council.

My findings

28. I have considered events in this case from January 2024. Anything before this is a late complaint and there is no good reason to exercise discretion to consider it now.
29. Paragraph 14 of this decision sets out the Ombudsman cannot investigate any matter that was, or could have been, appealed to the Tribunal.
30. The Council issued the final EHC Plan at the end of January 2024, just after this investigation has considered from. This gave Mr X his appeal right to the Tribunal. This removes the Ombudsman’s jurisdiction to consider any matters intrinsically linked to the detail in the plan. Y’s alternative provision is intrinsically linked to the details of his plan. The plan includes the alternative provision plans. If Mr X disagreed with the plan, as he set out in communication in March 2024, it was reasonable for him to appeal to the Tribunal.
31. However, part of Mr X’s complaint relates to communication from the Council. The Council accepted in its complaint response, and in its response to my enquiries, communication was poor. This is fault, frustrating Mr X.
32. Mr X confirmed ongoing concerns with this matter. I have not considered any actions after the Council complaint response in August 2024. The Council must have the opportunity to consider complaints before the Ombudsman can investigate.

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Action

33. To remedy the outstanding injustice caused to Mr X by the fault I have identified, the Council agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mr X for the poor communication. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. I have completed my investigation. I have found fault by the Council, which caused injustice to Mr X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman