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Birmingham City Council (17 012 568)

Category : Education > Alternative provision

Decision : Not upheld

Decision date : 22 Mar 2018

The Ombudsman's final decision:

Summary: The Ombudsman has ended investigation following Mr C’s request that the complaint is withdrawn.

The complaint

  1. The complainant (Mr C) complains about the following:
    • From 1 November 2016 to 8 June 2017 the Council failed to put in place an alternative education package for D in circumstances where it was not reasonably possible for D to attend the school she was registered at and her non-attendance was unavoidable
    • It was unreasonable for the Council to have defended a SEND tribunal appeal for an extended period with the Council conceding the appeal the day before the final hearing
    • It was unreasonable for the Council to have defended the tribunal appeal in the first place
    • There was fault in the way the Council handled the consultation phase between issuing a draft and final EHC plan
    • Mr C is responsible for arranging and funding transport to and from the school D currently is enrolled at. The Council should provide help with home-school transport.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. If there has been fault, the Ombudsman considers whether it has caused an injustice and, if it has, he may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
  2. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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)
  3. A judicial decision says that the Ombudsman cannot investigate complaints about matters which relate to a period when a SEND tribunal appeal is in progress and there is a close connection between the complained about matter and matters under the tribunal’s consideration. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407)

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How I considered this complaint

  1. As part of my investigation I have:
    • Considered Mr C’s statement of complaint
    • Spoken to Mr C on the telephone
    • Considered documents the Council provided in response to Ombudsman enquiries
    • Given an opportunity to Mr C and the Council to respond to the draft decision

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What I found

  1. D is a secondary age school pupil with special educational needs in the area of autistic spectrum condition, dyspraxia and mental health needs
  2. D transferred from mainstream primary to a mainstream secondary school in September 2015. Due to attendance issues at the mainstream secondary school, D started attending a medical needs related Pupil Referral Unit (PRU) under a dual registration arrangement. Due to deteriorating attendance at the PRU and recognition of the complexity of D’s needs, D’s secondary school asked the Council to carry out statutory assessment with a view to issuing an Education and Health Care Plan. The Council agreed to carry out statutory assessment.
  3. Following statutory assessment the Council decided to arrange D’s education under an Education Health and Care Plan. The Council issued a finalised EHC Plan on 29 November 2016. Mr C was unhappy with aspects of the finalised Plan and appealed to the Special Educational Needs and Disability (SEND) Tribunal in December 2016.
  4. D was missing from education in the period 1 November 2016 to 7 June 2017.
  5. The Council conceded the appeal on 31 March 2017. The Council agreed to fund and arrange D’s placement at an independent out-of-county school which specialises in the education of children with communication difficulties, autistic spectrum condition and complex needs. Mr C is responsible for arranging and funding the home-school journey.
  6. In April 2017 Mr C submitted a complaint to the Council about the way the Council had managed the appeal and D being missing from education in the period November 2016 to June 2017. Following meeting between the Head of Service and Mr C to discuss the complaint, the Council issued a written response to Mr C’s complaint in a letter dated 1 September 2017. Mr C then complained to the Local Government Ombudsman.

Analysis

What the Ombudsman can and cannot investigate

  1. The Ombudsman cannot investigate a complaint about the reasonableness or otherwise of the Council defending a SEND tribunal appeal. This is because the Ombudsman is unable to investigate tribunal proceedings. I note that under Section 10(1) of the Tribunal Procedure (First Tribunal Rules) 2009, the SEND tribunal can award costs if tribunal considers that a party has acted unreasonably in bringing, defending or conducting the proceedings.
  2. The Ombudsman could investigate a complaint about the Council failing to put in place an alternative education package for D when she was missing from education in November 2016 and the period 31 March to 7 June 2017. The Ombudsman could not investigate a complaint about D being missing from education during the period of the tribunal appeal. This is because a judicial decision says the Ombudsman cannot investigate a complaint which relates to a period when a SEND tribunal appeal is in progress and there is a close connection between the complaint and matters under the tribunal’s consideration. I am satisfied that Mr C’s complaint that the Council failed to put in place alternative education for D when she was missing from school in the period December 2016 to the beginning of April 2017 relates to issues under tribunal’s consideration, specifically Mr C’s and the Council’s opposing views on a suitable education setting for D that could meet her special educational needs.
  3. Mr C says there was fault in the way the Council handled the consultation phase between issuing the draft and final EHC plan. This is not a matter which the Ombudsman would normally investigate since the parent has a means of redress for any perceived weaknesses at the draft EHC Plan stage by way of appeal against the finalised EHC Plan.
  4. The Ombudsman could investigate a complaint about home-school transport for a child whose education is arranged under an EHC Plan if school transport is not referenced in the EHC Plan and the parent does not have the right to appeal the issue to the SEND tribunal. If the Ombudsman were to investigate the complaint the Ombudsman would need to be satisfied that the Council has been notified of the complaint and has been given a reasonable opportunity to consider the matter under a school transport review or appeal process.
  5. Mr C has requested that the complaint is withdrawn given further information about what the Ombudsman can and cannot look into. Mr C has told the Ombudsman that he is considering legal action against the Council in relation to his complaint about the Council’s failure to put in place an alternative education for D when she was missing from school in the period 1 November 2016 to 7 June 2017.

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Final decision

  1. Mr C has asked for the complaint to be withdrawn given further information about what the Ombudsman can and cannot look at. For this reason the Ombudsman has finished investigation and closed the complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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