Summary: Mrs Y complains the Council has failed to provide special education provision for her daughter, Miss X. We cannot investigate this complaint. Miss X lodged an appeal with the SEND Tribunal against the content of her EHC Plan. The lack of provision is inextricably linked to matters considered at appeal.

The complaint

1. Mrs Y complains on behalf of her daughter, Miss X. She says the Council has failed to secure the provision set out in Miss X’s EHC Plan for the 2022/23 academic year.
2. Mrs Y says this has caused a loss of educational opportunity and therapy provision for Miss X. It has also caused frustration and distress for Miss X’s family.

Back to top

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
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 SEND Tribunal in this decision statement.

Back to top

How I considered this complaint

6. I considered information Mrs Y provided and discussed the complaint with her.
7. I considered information the Council provided about the complaint.
8. Mrs Y, Miss X and the Council were able to comment on a draft version of this decision. I considered any comments I received before making a final decision.

Back to top

Relevant legislation, guidance and policy

Education, Health and Care Plans

9. 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.
10. The Council is responsible for making sure that arrangements specified in the EHC Plan are put 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.

Appeal rights

11. 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.

Content of an EHC Plan

12. The EHC plan is set out in sections which include:
• Section B: The child or young person’s 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 school.

The Hillingdon Judgment

13. 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).

Back to top

What I found

Background

14. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every interaction between parties. Where necessary, I have expanded on some of these events in the analysis section of this decision statement.
15. Mrs Y previously complained to the Ombudsman about the Council’s failure to secure the special educational provision set out in Miss X’s previous EHC Plan, issued in August 2020. Mrs Y said the Council failed to secure this provision over the course of two academic years.
16. The Ombudsman investigated this complaint, issuing a final decision in December 2022. We upheld Miss X’s complaint, finding that Miss X had missed occupational therapy provision and mobility training included in her EHC Plan. We found the Council failed to put in place measures set out in the plan to help Miss X engage remotely with her course, for when she could not attend for medical reasons. We also found faults in the Council’s communication and complaint handling.
17. The Council’s faults caused Miss X a significant injustice, affecting her wellbeing and educational attainment. Ultimately, Miss X left her course, as she had fallen too far behind in her assignments to complete it. We found the Council’s failure to secure the provision set out in the EHC Plan denied Miss X the opportunity to fully access her chosen course from the outset. We found this significantly contributed to Miss X’s disrupted and lost education.
18. Following an annual review of Miss X’s EHC Plan, the Council issued an amended EHC Plan for Miss X in August 2022. This provided Miss X with a right of appeal over the content of the plan, if she was dissatisfied with it. Miss X appealed the content of her EHC Plan in October 2022. A SEND Tribunal hearing took place in June 2023.
19. Mrs Y complained to the Council again the same month. While being unhappy with the content of the plan and seeking change through the appeal, Mrs Y also complained the Council continued not to secure the provision set out in the plan in the meantime. Mrs Y set out six parts to her complaint.
20. The Council provided its final response to Mrs Y’s complaint in February 2023. It fully upheld five parts of Mrs Y’s complaint and partially upheld the sixth. In substance, it again accepted a failure to secure the provision set out in Miss X’s amended final EHC Plan. It awarded a financial remedy in recognition of this, taking account of the Ombudsman’s Guidance on Remedies.
21. Mrs Y again approached the Ombudsman, complaining Miss X would be without the educational provision set out in her EHC Plan for a third academic year.

Analysis

22. I have carefully considered whether the Ombudsman can investigate Mrs Y’s current complaint. I have taken account of the findings of our previous investigation and noted the Council’s admission it has again failed to secure provision.
23. When the Council issued Miss X’s previous EHC Plan in August 2020, there was no disagreement about the content of the plan or setting named. Miss X’s lack of provision was because the Council had failed to put in place the support and provision detailed in the plan. There was no right of appeal. We could therefore investigate the Council’s actions.
24. In this case, the Council set out its decisions about Miss X’s special educational needs, special educational provision, and educational setting in Miss X’s amended EHC Plan, issued in August 2022. The EHC Plan does not name a specific school or college, specifying a general further education college as the setting, to be identified.
25. Miss X exercised her right of appeal against Sections B, F, and I of her EHC Plan. Miss X asked the SEND Tribunal to change the setting named on her EHC Plan, so the plan could comprise of a package of Education Other Than At School (EOTAS). She has also said the EHC Plan had not been updated to reflect her needs. Mrs Y says Miss X is receiving no educational provision in the meantime.
26. I have carefully considered the Ombudsman’s jurisdiction in such circumstances, set out in paragraph 13. Having done so, I believe I cannot investigate Mrs Y’s complaint about the Council’s failure to secure special educational provision for the 22/23 academic year. Miss X’s current lack of provision is inextricably linked to the Council’s decisions about the content of the EHC Plan, as well as the decision not to name a specific setting or EOTAS. These are matters appealed to the SEND Tribunal.
27. Miss X’s EHC Plan contained social care elements that could potentially be delivered outside an education setting. I have therefore considered whether a failure to secure these parts of the EHC Plan could be separated from any elements under appeal.
28. In this case, Miss X’s appeal also asked the SEND Tribunal to make decisions and recommendations about the social care needs and social care provision set out in the EHC Plan. Any social care provision is therefore inextricably linked to matters considered at appeal. I cannot therefore investigate a complaint about this.

Back to top

Final decision

29. I have ended my investigation of this complaint. This is because Miss X lodged an appeal to the SEND Tribunal and the complaint is inextricably linked to matters considered at appeal.

Back to top

Investigator's decision on behalf of the Ombudsman