The Ombudsman's final decision
Summary: Miss X complained the Council delayed providing alternative provision for her child, F when he could not attend the named placement in his Education, Health and Care (EHC) Plan and refused an updated Educational Psychologist (EP) assessment. She also complained about annual review delays. The issue of alternative provision and the EP assessment are outside our jurisdiction because Miss X had appealed to the tribunal. The Council was at fault for failing to re-schedule an annual review at the start of 2023 and for complaint delays. It agreed to make a payment to Miss X to acknowledge the frustration and uncertainty caused.
The complaint
Miss X complained the Council delayed providing an agreed personal budget to fund an EOTAS (Education other than at school) package for her son, F after she appealed to the SEND tribunal about the school named in F’s final Education, Health and Care (EHC) Plan. Miss X also complained the Council refused to carry out an annual review during the appeal period and refused to carry out a new Educational Psychologist assessment.
Miss X said the matter has caused her distress, time and trouble and unnecessary financial loss. She said the delay providing the personal budget mean F missed out on educational opportunities and specialist provision and resources.
The Ombudsman’s role and powers
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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) 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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
I spoke to Miss X about her complaint and considered information she provided.
I considered information from the Council.
Miss X and the Council had an opportunity to comment on the draft decision. I considered comments before making a final decision.
What I found
EHC Plans and annual reviews 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.
The EHC Plan is set out in sections which include: Section B: 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 educational placement.
The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews.
The annual review is not affected by any ongoing appeal to the SEND tribunal. An annual review during an appeal process could be an opportunity to try and resolve some of the issues in dispute and so the reviews must go ahead as scheduled.
SEND Tribunal and relevant caselaw 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.
There is a right of appeal to the SEND tribunal against the 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.
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).
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.
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.
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) 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).
The Council’s complaints policy The Council’s complaints policy on its website states it will acknowledge new complaints within 5 working days. It will then aim to respond at stage one of its process within 20 working days. If it cannot, it says it will advise of the delay and the reasons why.
If someone is dissatisfied with the stage one response they can escalate the complaint to stage two. It says the stage two review may be carried out by a head of service. The Council’s policy does not give a timescale as to how long the stage two review should take.
What happened Miss X has a child, F who is of primary school age. F has special educational needs and an EHC Plan which was first issued in May 2022. Following an interim review, the Council issued an amended EHC Plan in September 2022 which named School A, a mainstream primary school as F’s placement. At the time, School A was Miss X’s preferred choice of placement for F.
In October 2022 Miss X appealed to the SEND Tribunal against sections B, F and I of the EHC Plan. F was not attending School A due to social difficulties and school-based anxiety. Miss X wanted F to attend a special school rather than School A, believed his needs had changed and wanted Speech and Language provision included in section F.
Miss X then requested the Council re-assess F’s needs and requested an annual review. She also asked the Council for an EOTAS package for F and a personal budget so she could put this in place.
The Council wrote to Miss X in November 2022 declining to carry out a needs re-assessment on the basis that F’s needs had not changed significantly. The Council agreed to hold an annual review and provided a date in December 2022. With regards to Miss X’s request for a personal budget, it agreed to Miss X’s request and outlined the breakdown for a 38 week academic year. It included funding for tutors and computer based provision. The Council said it would draw up a personal budget agreement if Miss X wished to go ahead with it.
Records show Miss X did not attend the scheduled annual review meeting due to mistakenly believing it was on a different date. Miss X asked to reschedule.
The Council met with Miss X twice in February 2023 to discuss the EHC Plan and Miss X’s EOTAS personal budget. Miss X also told the Council F’s needs had changed and he required an updated Educational Psychology (EP) assessment which Miss X said the Council refused. The Council began paying the personal budget to Miss X following the second meeting towards the end of February.
Miss X complained to the Council in February 2023 about its handling of her personal budget request on the basis it was refusing to backdate the budget to November 2022 and had not provided equipment such as a laptop as agreed. Miss X said therefore the Council had not ensured F received provision in line with section F or a full-time education between November 2022 and February 2023. Miss X also raised concerns about a lack of Speech and Language Therapy (SALT) and Occupational Therapy (OT) provision in the plan. Miss X also complained the Council did not re-schedule the annual review.
The Council responded to Miss X’s complaint in July 2023. It said F’s EHC Plan named School A which was fully able to deliver all the provision set out in the plan. The Council said it took the unusual step to provide interim provision for F while he was out of school and a specialist placement was found. The Council said it would reimburse Miss X for any provision she paid for between November and February while the personal budget had been agreed. With regards to the annual review the Council said Miss X did not attend or respond to communications on the day. Following this, it said the SEND tribunal process took precedence, although it had met with Miss X twice in February 2023 to discuss her requested changes to the EHC Plan.
In July 2023 a specialist placement was found for F in a different council area. The Council agreed to carry out a new EP assessment. However, Miss X moved to the new council area and his EHC Plan transferred to the new council before the EP assessment could be carried out. As the new council had now taken responsibility for F’s education and his EHC Plan, this Council declined to continue with the new EP assessment.
In August 2023 Miss X made a further complaint that the Council had refused to carry new needs assessment for F during the period between January and July 2023. She said this meant F’s EHC Plan did not accurately reflect his needs. Miss X chased the Council for a response to this complaint between September and November 2023. The Council responded in December 2023 declining to investigate the matter as it was linked to her ongoing SEND tribunal appeal.
Miss X remained unhappy and complained to us.
The SEND tribunal hearing heard F’s case in February 2024. Records show the tribunal discussed and considered Miss X’s concerns about sections B, F and I.
My findings
Delay in providing a personal budget for F’s EOTAS Paragraphs 14-20 explain the restrictions placed on our jurisdiction when someone has appealed to the SEND tribunal against the contents and/or named placement in an EHC Plan.
I cannot investigate Miss X’s complaint about a lack of special educational provision or education for F between November 2022 and February 2023. Ultimately the Council issued an EHC Plan for F naming School A which it deemed appropriate and one it felt could have provided F with all the provision outlined in the plan. Miss X was unhappy with the named school, appealed sections B, F and I to the SEND tribunal and decided not to send F to School A. The reason for F’s non-attendance is a consequence of Miss X’s disagreement about the contents of the EHC Plan in sections B, F and I. This means the law says we cannot investigate a lack of special educational provision, or in this case Miss X’s concerns about the delay in providing the personal budget for the interim alternative EOTAS provision.
Refusal to carry out a new EP assessment The same follows for Miss X’s complaint that the Council refused to commission a new EP report for F between January and July 2023. The consequence of the Council’s decision is that Miss X believed the EHC Plan did not accurately reflect his needs. This issue ‘could’ be, and in fact was considered by the SEND tribunal hearing in February 2024. As explained in paragraph 16, this means I cannot investigate this further.
While the Council agreed to a new EP report when the specialist school was found for F in July, Miss X had moved to the new council area. The new Council then had responsibility for F’s education and the EHC Plan. It was for the new council to decide if F required a new EP assessment. Nevertheless, as Miss X’s request for a new EP assessment was directly linked to her disagreement about sections B, F and I of the EHC Plan, we cannot investigate this part of her complaint either. She could have asked the tribunal to come to a finding on whether a new EP assessment was needed. The tribunal concluded its hearing in February 2024.
Annual review F’s annual review was scheduled for December 2022. Due to a mistake Miss X did not turn up for the review and she asked it to re-schedule. The Council in its complaint response said the SEND tribunal process took precedence. However, the annual review for an EHC Plan should always go ahead regardless of whether there is an ongoing appeal. This is because an annual review is an opportunity to resolve the issues in dispute and for other professionals to have input. The Council is at fault for not re-arranging the annual review and this caused Miss X uncertainty and frustration around whether some of her concerns could have been resolved earlier and perhaps the appeal withdrawn or conceded.
Complaint delays Miss X initially complained to the Council in February 2023. However, it did not provide a stage one response until July 2023. That was delay and fault. Miss X asked to escalate her complaint to stage two at the end of July and the final response was not until December 2023. Although, the Council’s policy does not give a timescale this response took over four months from Miss X’s escalation. Therefore, I also consider that fault. Miss X also raised a separate complaint about the EP assessment in September 2023, but the Council did not respond until December 2023. All of these delays are fault and caused Miss X frustration and uncertainty.
In response to the draft decision in this case the Council said it now has a new complaints policy which has clear timescales for responding to complaints at both stage one and stage two of the process, however it is still in draft form. The Council said it will remove the old policy from its website and update it with the revised policy in due course. It confirmed staff were already responding to complaints in line with the timescales in the revised policy.
Agreed action
Within one month of the final decision the Council agreed to take the following action: Pay Miss X £250 to acknowledge the frustration and uncertainty caused by the Council’s failure to re-arrange the annual review at the start of 2023 and the delays in responding to her complaints.
Remind SEND staff that annual reviews must still take place regardless of whether there is an ongoing SEND tribunal appeal.
Remind its complaints managers to ensure relevant staff provide both stage one and stage two complaint responses in line with the timescales set out in its complaints policy.
Within two months of the final decision the Council agreed to take the following action: d) publish its revised complaints policy on its website to ensure the timescales for responding to complaints are clear. The Council should provide us with a copy of the revised policy.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I completed this investigation. I found some fault and the Council agreed to my recommendations to remedy the injustice caused.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman