Summary: We will not investigate Mrs X’s complaint about how the Council conducted reviews of her adult child’s Education, Health and Care (EHC) Plan, alternative education provision and the Council’s conduct while dealing with her Tribunal appeal. Some issues are late. The law says we cannot investigate matters closely related to, or considered by, a Tribunal. Other bodies are better placed to consider issues about health provision and the Council’s compliance with General Data Protection Regulations. We also could not add to the Council’s investigation and responses on matters separable from the Tribunal appeal.

The complaint

1. Mrs X complains on behalf of her adult child, Y, about how the Council has dealt with their Education, Health and Care (EHC) plan. Mrs X complains the Council failed to:
1. ensure the named school delivered EHC provision in Y’s plan;
2. provide alternative education provision or therapy when Y refused to attend the named school from September 2023 to May 2024;
3. provide timely evidence to the SEND Tribunal in relation to Mrs X’s appeal;
4. agree to Mrs X’s request for a change of caseworker;
5. process Mrs X’s Subject Access Request (SAR);
6. ensure outdated information for Y was updated on the EHC Hub;
7. ensure health provision was delivered to Y as set out in the EHC plan.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. 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.
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. 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)
8. 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)  
9. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as NHS Integrated Care Boards. (Local Government Act 1974, sections 25 and 34(1), as amended)
10. 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)
11. 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.
12. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
13. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

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How I considered this complaint

14. I considered information provided by the complainant and the Council.

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My assessment

15. Mrs X’s complaints span a period covered by two annual reviews of her adult child’s (Y) Education, Health and Care (EHC) plan, in March 2023 and April 2024.
16. We usually expect people to complain to us within 12 months of the events they are complaining about. Any aspects of Mrs X’s complaints about the Council’s handling of Y’s 2023 EHC plan annual review that occurred more than 12 months prior to Mrs X’s complaint to us are now late. I have not seen anything to suggest Mrs X could not have brought these concerns to us sooner, so I will not exercise discretion to investigate this late complaint now.

Y’s EHC plan provision and alternative education provision

17. Mrs X complains the Council’s failure to ensure Y’s named education placement delivered the provision set out in their EHC plan has meant they were not supported to attend and remain in school. This relates to complaints a and b set out in paragraph 1 above.
18. The Council has explained to Mrs X it was satisfied Y could attend the school named in their EHC plan and that this school was offering appropriate ways to help Y re-engage. The Council also explained why it did not accept the letter from Y’s General Practitioner (GP) as evidence they were medically unfit to attend school.
19. We cannot investigate Mrs X’s complaints about these elements. The Council is entitled to make a professional judgement on whether it owes alternative education duties. These elements of Mrs X’s complaints also appear to have formed part of her appeal to the Tribunal, which places them outside of our jurisdiction to investigate.

Delays in the Council providing evidence to the Tribunal

20. We cannot investigate point c of Mrs X’s complaints about the Council’s delay in providing information to the Tribunal. As set out in paragraph 8 above, caselaw has made clear that we cannot investigate a council’s conduct during an appeal.

Change of case worker

21. The Council has provided Mrs X with detailed explanations for declining her request for another Special Educational Needs (SEN) Case Worker in its stage one and two complaint responses. Mrs X’s disagreement with the Council’s decision is not evidence of fault. We should not investigate this issue because we have no powers to insist the Council allocates Y’s case to another officer.

Processing of Mrs X’s Subject Access Request (SAR)

22. Processing of SARs is covered by the General Data Protection Regulations (GDPR). The Information Commissioner’s Office (ICO) is responsible for investigating complaints of non-compliance with GDPR, including the processing of SARs. We have no remit to investigate this element of Mrs X’s complaint. She may wish to complain to the ICO about this matter, if she has not already done so.

Outdated information about Y on the EHC Hub

23. Mrs X complains the Council failed to update information about Y’s EHC plan on an online hub which is used by their current education placement. The Council has apologised to Mrs X for the delay in updating information about Y. It has assured her that Y’s new education placement has received a copy of current EHC plan and is aware of their current needs/provision.
24. We are unlikely to achieve anything more for Mrs X and Y in respect of this issue. The Council has already apologised and taken appropriate action to ensure Y’s education placement had their correct EHC plan.

Health provision

25. In its complaints responses, the Council explained to Mrs X the NHS Integrated Care Board (ICB) decided not to agree the non-binding recommendations made by the Tribunal. Neither the Council nor the Ombudsman have the jurisdiction to enforce the recommendations of the Tribunal on the ICB. Mrs X would need to raise any concerns she has about this element of her complaint with the NHS directly.

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Final decision

26. We will not investigate Mrs X’s complaint because:

• some of it is late (part of points a and b);
• some of it forms part of an appeal to the Tribunal (points b and c);
• we could not add to the response the Council has already provided (points d and f); and,
• other bodies are better placed to consider some elements (points e and g).

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Investigator's decision on behalf of the Ombudsman