The Ombudsman's final decision:
Summary: We have discontinued our investigation into Ms X’s complaint that the Council failed to provide adequate educational and special educational provision for her son. This is because Ms X had appeal rights to the Special Educational Needs and Disability Tribunal which she exercised.
- The complainant, whom I refer to as Ms X, complains the Council failed to provide adequate education and adequate special educational provision to her son, Y, while he was out of school.
- Ms X says this has caused Y to miss out on education and fall behind. While the Council has offered a remedy to Ms X, she does not believe this reflects the time Y spend without education.
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
- We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
How I considered this complaint
- As part of this investigation I considered the complaint made by Ms X and the Council’s responses. I also considered information provided by Ms X. I made enquiries to the Council and considered the information received in response. I sent a draft of this decision to Ms X and the Council and considered the comments received in response.
What I found
- 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.
- Ms X’s son Y has special educational needs. The Council produced an EHC plan for Y in May 2018. This named Y’s current school, school A, as the named placement.
- From the end of June 2018 Ms X says school A placed Y onto a part time timetable. Ms X believed school A was not suitable for Y and could not meet his needs. Ms X appealed to the SEND Tribunal in August 2018 as she disagreed with the sections of the plan outlining Y’s special educational needs, the level of provision Y needs and the school placement. Ms X wanted Y to attend a specialist school not a mainstream school.
- In October 2018 Ms X took Y out of school as his mental health was deteriorating. Ms X brought Y to his GP and told the GP Y was facing difficulties at school which were worsening his anxiety. The GP provided Ms X with a letter to take to school A which said: “If Y’s anxiety is being made worse by these episodes of restraint then remaining away from school for his anxiety could be considered the only option. I would suggest given the difficulties his mother has had, and the lack of management plan for staff dealing with Y’s behaviour, it would be prudent for the school to readdress and communicate with his mother regarding appropriate management to help reduce Y’s anxiety and help manage his behaviour more effectively.”
- The headteacher of school A contacted Y’s GP in early November 2018. The GP wrote to school A saying he did not provide Y with a sickness certificate and he felt the best way forward was for Ms X and Y to engage with school A regarding a provision map and the school’s attempt to help Y.
- When Ms X confirmed she would not send Y back to school A the Council referred Y to the service which provides alternative education for children not in school. This service found Y was ineligible to receive provision as it was of the view Ms X was choosing not to send Y to school and there was no medical sign off for Y. As a result Y did not receive any education.
- The SEND Tribunal issued its decision at the end of June 2019 and named a specialist school, school B, in Y’s EHC plan. School B agreed to provide a placement for Y from September 2019.
- Ms X complained to the Council that it took too long to secure suitable provision for Y as set out in his EHC plan. She also complained during the period Y did not attend school from October 2018 until September 2019 Y did not receive any educational provision.
- The Council asked an independent investigator to consider the complaint. The findings of this investigation were that the Council did not provide education for Y when he was out of school. The investigator did conclude there was no medical sign off for Y in October 2018 and it was Ms X’s choice to remove him from school A. The investigator also found the Council took too long to find an alternative placement for Y which held up the Tribunal process.
- The Council wrote to Ms X offering £1,000 in recognition of the findings from the independent investigator and £100 for time and trouble in brining her complaint. The Council also listed some procedural changes it has made in light if the investigator’s findings.
- Ms X remained dissatisfied and complained to the Ombudsman as she did not think the Council’s remedy reflected the injustice Y suffered.
- We have discontinued the investigation as this complaint falls outside of the Ombudsman’s jurisdiction to investigate.
- Once the Council issued Y’s EHC plan in May 2018, Ms X had appeal rights to the SEND Tribunal, which she exercised. While Ms X appealed the content of Y’s EHC plan she also appealed the named school in the plan.
- The Ombudsman has no jurisdiction where a parent has appealed to the SEND Tribunal from the date the SEND appeal right arises until the appeal is completed. In this case Mrs X’s appeal rights arose in May 2018 and the appeal was completed at the end of June 2019.
- Any loss of education or fault during this period which is a consequence of the decision being appealed (e.g. choice of placement or provision specified in the plan) is out of jurisdiction, even if this means the injustice will not be remedied.
- I have also considered whether we can look at the remedy the Council offered Ms X through its complaints procedure to see if this was reasonable. However to do so we would need to make a finding of fault that the Council failed to provide Y with suitable education. For the reasons outlined above we are unable to do so.
- I have discontinued the investigation on the basis the matters complained about are outside of our jurisdiction to investigate.
Investigator's decision on behalf of the Ombudsman