Summary: Miss X complains the Council did not properly deal with educational and special educational needs provision for her daughter Y. The Council did not provide suitable full-time education for Y. Y suffered a loss of educational provision. The Council has offered Miss X an appropriate remedy.

The complaint

1. The complainant, whom I shall refer to as Miss X, complains the Council did not properly deal with educational and special educational needs provision for her daughter Y, from February 2023.
2. Miss X says her daughter Y suffered loss of education provision and avoidable distress.

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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. 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)
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. 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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

8. I have investigated that part of Miss X’s complaint about how the Council has dealt with education provision between January and June 2023.
9. I have not investigated the complaint after June 2023 because Miss X appealed to SEND Tribunal about her daughter’s educational placement in her Education Health and Care Plan (EHC Plan) and this is outside the Ombudsman’s jurisdiction.

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How I considered this complaint

10. I spoke to Miss X about her complaint and considered documents she provided. I considered the Council’s responses and the supporting documents it provided.
11. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law, guidance and policies

12. 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)
13. 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.
14. 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. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.

What happened?

15. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
16. Y was in year 6 and had an EHC Plan.
17. Y was permanently excluded from school in February 2023.
18. In June 2023, the Council issued a final amended EHC Plan for Y. This did not state any educational placement. Miss X appealed to SEND Tribunal.
19. In November 2023 the Council provided some educational provision for Y.
20. SEND Tribunal considered Miss X’s appeal in March 2024.

Analysis

21. The Council accepts that it did not provide a full-time education to Y for over two terms. This is fault by the Council. Y suffered a loss of education and special educational needs provision.
22. In respect of this, it has previously offered Miss X a financial remedy payment of £3,000.
23. I am only able to consider the time period between February 2023 and June 2023, as explained above in paragraphs 10 to 12. The Council’s remedy is appropriate in respect of this period of time that I am able to investigate.

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Final decision

24. I have found fault by the Council, which caused injustice to Miss X. The Council has offered an appropriate remedy. I have now completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman