Summary: Mrs M complains the Council failed to make alternative arrangements for her daughter G’s education when she became unable to attend school in September 2021. Mrs M’s appeal to the SEND Tribunal limits the scope of my investigation. For the short period of Mrs M’s complaint I have been able to investigate, there was no fault by the Council.

The complaint

1. Mrs M complains the Council failed to make alternative arrangements for her daughter G’s education when she became unable to attend school in September 2021.

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The Ombudsman’s role and powers

2. 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’.
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (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.
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 considered information provided by Mrs M and the Council. I invited Mrs M and the Council to comment on my draft decision.

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What I found

8. Mrs M says G has been unable to attend school since September 2021.
9. Mrs M asked the Council to undertake an Education, Health and Care (EHC) needs assessment in January 2022. The Council agreed and issued an EHC Plan in August 2022. The Plan said G would continue to attend the same school. Mrs M disagreed with the Plan and appealed to the SEND Tribunal.
10. Ms M complained to the Council about G’s lack of education on 14 December 2022. The Council responded on 6 January 2023. Unhappy with the Council’s response, Ms M asked the Council to respond at the second stage of its complaints procedure. On 23 February 2023, the Council declined.
11. The Tribunal ruled on 28 April 2023 and allowed Ms M’s appeal in part, making changes to parts B, F and I of G’s EHC Plan. The Council had agreed to Ms M’s request for education other than at school (EOTAS) during the appeal.
12. Ms M complained to us on 16 June 2023.

Consideration

13. Complaints to the Ombudsman must be made promptly and within 12 months of a person becoming aware of the matter they complain about. We may investigate late complaints, but only if there was a good reason the complaint could not have been made sooner. The longer an investigation takes place after the events complained about, the harder it is to make findings. And if we find fault, the less likely we will be able to recommend action to put the person affected back in the position they would have been in if the fault had not occurred.
14. Mrs M complained to the Council fifteen months after G stopped attending school. The Council responded to Ms M’s complaint promptly. Mrs M complained to the Ombudsman four months after the Council gave its final response to her complaint.
15. I have considered events from June 2022, twelve months before Mrs M complained to the Ombudsman. Events before this are too old. Mrs M could have complained – to the Council and then to the Ombudsman – sooner.
16. I cannot consider events after August 2022 when the Council issued G’s EHC Plan because Mrs M appealed to the SEND Tribunal. We cannot investigate complaints when someone has appealed to the Tribunal about the same matter.
17. Mrs M says her complaint is about the Council’s failure to arrange alternative education whereas her appeal to the SEND Tribunal is about G’s special educational provision. However, they effectively amount to the same thing. Caselaw has confirmed we cannot investigate complaints where this is the case.
18. This means I can only consider events between June and August 2022.

G’s education between June and August 2022

19. Between June and August 2022, G was on roll at a mainstream secondary school, although she did not attend.
20. The Council has a duty to arrange suitable education for children who would not otherwise receive suitable education. The Council is – in effect – a “safety net”.
21. The education, health and care (EHC) needs assessment had indicated G would need an EHC Plan and a bespoke, individualised curriculum, provided by her school, with the aim of her returning to full-time education.
22. I understand there was a meeting between the Council, Mrs M and G’s school on 23 June 2022. The Council offered support from two of its alternative education provides: Access to Education and Surrey Online School, and an animal-based support service. The school also offered resources.
23. Unhappy with the Council’s offer, Mrs M asked for an alternative animal-assisted therapy service and a physical activity.
24. I am satisfied the Council considered its duty to arrange suitable education for G and made an offer of support. It appears the Council’s provision was scheduled to start at the beginning of the new school year.
25. Access to Education and the Council’s animal-based support service made initial visits in September 2022, but regrettably G was unable to participate. I am unable to investigate further, however, since the Council had issued an EHC Plan which Mrs M subsequently appealed.

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Final decision

26. I have ended my investigation. There was no fault by the Council in the short period of Mrs M’s complaint I have been able to investigate.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman