Summary: The remedy offered by the Council to make up for the failure to provide speech and language therapy is a satisfactory remedy for the injustice caused. There was no failure to provide education for a term, as Mr X refused the tuition that was offered to his son.

The complaint

1. The complainant, who I shall call Mr X, complains that his son, Y, lost a year of education. Mr X complains that an annual review was not carried out and that his son missed out on Occupational and Speech and language therapy.

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What I have and have not investigated

2. Mr X complained to the Ombudsman in March 2022, about the Council’s failure to hold an annual review and about his son’s lack of education (21 018 694). This complaint was outside the Ombudsman’s jurisdiction as Mr X appealed to the SEND Tribunal. Most of his complaint could not be separated from matters which the Tribunal would consider. The complaint about the Annual Review overlapped with when the Tribunal was considering his case. The Annual Review process looks at a child's EHC plan to decide what, if any changes, are needed. The Tribunal was effectively doing the same. The two matters cannot be separated and so there is nothing we can investigate.’
3. The decision on the previous complaint was also clear that Mr X’s complaint that his child was out of school prior to the SEND tribunal could not be separated from the matters heard at the SEND tribunal and so was outside of the Ombudsman’s jurisdiction.
4. I can, however, look at the period from April 2022 until July 2022, when Mr X said his son had no educational provision and therapy.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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)

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How I considered this complaint

7. I read the papers put in by Mr X and discussed the complaint with him.
8. I considered the Council’s comments about the complaint and any supporting documents it provided.
9. Mr X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Relevant law and guidance

10. A child with special educational needs may have an Education, Health and Care (EHC) Plan. This 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 education or name a different school. Only the Tribunal can do this.
11. The Council is responsible for making sure that arrangements named in the EHC Plan are in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
12. If a child receives an EHC Plan, the Council must ensure the child receives the education specified in it.
13. 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. Parents must consider mediation before deciding to appeal. 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.
14. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

What happened

15. Y was born in 2015 and has Autistic Spectrum Condition (ASC). Y got a EHC plan in October 2019 naming mainstream primary school, with one to one support.
16. Mr X appealed to the SEND tribunal against the EHC plan issued after an annual review on 15 March 2021.
17. An annual review of the EHC plan was due in October 2021. Mr X complained that this did not take place.
18. Y stopped attending his school and the Council offered home tuition from January 2022.
19. After the SEND tribunal, the Council issued the amended EHC plan on 5 May 2022. The annual review took place on 8 July 2022 and the Council amended the EHC plan to name a new school.

My analysis

20. Mr X says there was no educational provision offered for Y from April 2022 until July 2022.
21. The Council has said that it offered Y home tuition in January 2022 but Mr X told the tutor he did not want the tuition. The tuition company contacted Mr X a further two times in February and March 2022 but Mr X said he did not want home tuition. Mr X says that the Council offered 10 hours per week tuition and he refused this as he wanted 30 hours per week of education.
22. The Council said that it considered this tuition was suitable provision in line with his family’s wishes which would be in place until there was a school placement. But, as Mr X refused this no tuition was in place between April 2022 and July 2022.
23. Mr X says that his son did not get Occupational and Speech and language therapy (SALT) from April 2022 until July 2022.
24. Y’s EHC plan does not include Occupational therapy (OT) and so he cannot have has missed any OT input during the period from April to July 2022.
25. The Council has said that it accepts the SALT provision in the EHC plan was not delivered in the Summer Term 2022 when Y was not in school. The provision was 150 minutes of SALT input to devise a programme and train staff. The Council has said that it proposes to make up this provision this academic year now Y has a school placement.
26. The Council has accepted fault and its intention to make up the provision is a reasonable remedy. As Y has only just started at the school and is likely to need a slow transition, I would not expect the Council to provide the extra SALT immediately. However, I would expect the extra provision, as well as that already planned for 2022-2023, to be reported at the 2023 annual review.

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Final decision

27. I have completed my investigation of this complaint. There was fault by the Council which caused injustice to Y. The Council has already agreed to remedy the injustice by making up the lost educational provision and no further remedy is proposed.

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Investigator's decision on behalf of the Ombudsman