Summary: We ended our investigation about free school meal payments. Miss X should have complained to us sooner and she had already used her appeal rights to the special educational needs and disabilities Tribunal.

The complaint

1. Miss X complained the Council failed to pay her money for her child, Y’s, free school meals between late 2022 to May 2024. Miss X said this caused her a financial burden, distress and anxiety.

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The Ombudsman’s role and powers

2. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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 the Council and Miss X and spoke to her on the telephone. I also considered relevant law, policy and guidance.
7. Miss X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

8. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This document sets out the child or young person’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section I is the name and/or type of school the child or young person will attend. Section F sets out the educational provision needed by the child or young person. When a child has an EHC Plan, their local council is responsible for finding them an appropriate school place. 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.

Appeal rights to the SEND Tribunal

9. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
10. 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). 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.

Free school meals

11. Free school meals help disadvantaged pupils engage with and benefit from education. The primary legislation for free school meals is the Education Act 1996 (the Act). In general terms, sections 512A and 512B place a duty on maintained schools (including nurseries and pupil referral units), academies and free schools to determine if a child is eligible for free school meals and to provide those meals. There is no duty on any organisation to provide free school meals for children receiving elective home education.
12. In March 2024, the government issued revised guidance on free school meals. That guidance said councils should provide free school meals to some children receiving Education Otherwise Than At School (EOTAS), where they met the criteria. EOTAS is a form of education where the child receives provision wholly outside of a school setting. It can be made up of several different kinds of provision.

What happened

13. Miss X deregistered her child, Y, from a mainstream primary school, School 1 over five years ago because she felt School 1 could not meet Y’s needs. Miss X electively home educated Y. Parents have a right to educate their children at home (Section 7, Education Act, 1996). This can include the use of tutors or parental support groups.
14. Miss X said Y did not receive free school meals when they stopped attending School 1.
15. In late 2022 Miss X contacted the Council and requested an Education, Health and Care (EHC) needs assessment for Y. Miss X said the Council took Y off the Electively Home Educated register. Council records noted Y was ‘unplaced’ in an education placement in late 2022. In February 2023 Council records said Y received Elective Home Education. Miss X wanted Y to receive Education Otherwise Than At School (EOTAS).
16. The Council decided Y should have an EHC Plan and in May 2023 issued Y’s final Plan. Section I named Elective Home Education. The Council gave Miss X her appeal rights to the special educational needs and disabilities (SEND) Tribunal. Miss X exercised her right of appeal to the Tribunal about the delays in Y’s EHC Plan process and she wanted Y to receive EOTAS.
17. In October 2023 Miss X complained to the Ombudsman about the Council’s failure to provide Y with an education. Her complaint mentioned lost free school meal payments. The Ombudsman considered the issues raised but did not investigate further because the Ombudsman decided intervention would not add anything significant to the investigation the Council carried out or lead to a different outcome.
18. Miss X’s SEND Tribunal appeal concluded in May 2024. Section F of Y’s final amended EHC Plan included EOTAS.
19. Miss X complained to the Council about Y’s lost free school meal payments in September 2024. The Council responded to Miss X’s complaint and said it would not be possible to back date Y’s free school meals to early 2020. The Council sent Miss X a payment for the value of Y’s free school meals from May 2024 when Y started receiving EOTAS.
20. Miss X remained unhappy about Y’s outstanding free school meal payments prior to Y receiving EOTAS and complained to us.

Analysis

21. Late complaints are when someone takes more than 12 months to complain to the Ombudsman about something a council has done.
22. Miss X was aware in late 2022 that Y was not attending a school, and was not receiving free school meals. The Council said Y was ‘unplaced’ in an education setting in late 2022 and then issued Y’s EHC Plan with Elective Home Education in Section I in May 2023. Miss X also complained to the Ombudsman in October 2023, part of her complaint was about free school meals for Y. I consider it was reasonable for Miss X to have complained sooner if she was unhappy with Y’s free school meals and the previous Ombudsman outcome. Therefore, I have not exercised discretion to investigate from late 2022. It was reasonable to investigate from March 2024 a year before Miss X complained in this case.
23. In May 2023 Y’s EHC Plan was finalised. At that point Miss X had a right of appeal to the SEND Tribunal, which she exercised. Miss X wanted Y to receive EOTAS and not to be home educated which was stipulated in Section I of Y’s Plan. The law says we cannot investigate a complaint if someone has appealed to a Tribunal about the same matter, explained in paragraph five above. Caselaw has also found we cannot investigate matters linked to a person’s appeal. I consider Miss X’s appeal was linked to, or was a consequence of, Miss X’s disagreement about Y’s education in their final amended EHC Plan, therefore I cannot investigate free school meals in that period. This restriction started from the appealable decision in May 2023 and ended when the Council issued Y’s final amended EHC Plan in May 2024.
24. For the reasons set out above I have ended my investigation.

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Decision

25. I have ended my investigation because Miss X could have complained to us sooner and she had a right of appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman