The Ombudsman's final decision:
Summary: Mr F complains the Council failed to secure the provision in his son’s education, health and care plan from April to November 2020 and about the way it dealt with his education in that period. We have ended our investigation into most of Mr F’s complaints because they are either outside the Ombudsman’s remit or should not be pursued further as no injustice has been caused. We will incorporate one element into Mr F’s separate complaint to the Ombudsman about provision following a SEND Tribunal.
- Mr F complains the Council:
- Failed to secure special educational needs provision from April to November 2020 for his son, J. Mr F says the Council could have made that provision at home from April to July and partly at home from September to November.
- Breached guidance and internal procedures when dealing with COVID-19 risk assessments, failed to properly reflect the mental health risk to J and removed reference to the risk of “regression” for J from the risk assessment of 15 May 2020. Mr F says the risk assessments were compromised because the School wrongly had a blanket policy that school staff could not work in family homes.
- Failed to investigate and challenge the School about its prioritising provision for keyworker children.
- Had an unfair EHC plan risk assessment mediation panel process which lacked transparency and sought to appoint its own officers to decide an issue in respect of which the Council itself and the parents were in dispute. Mr F considers that this was an abuse of power.
- Allowed an emergency annual review to be used for a collateral purpose and in breach of the SEND Code of Practice.
- Failed to check that the SEN provision had been properly put in place after November 2020.
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)
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- 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.
- We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
- Caselaw has established that where someone may appeal or has appealed to the SEND Tribunal, the Ombudsman cannot investigate any matter which is 'inextricably linked' to the matters under appeal. (R (on the application of ER) v The Commissioner for Local Government Administration  EWCA Civ 1407)
- The Court of Appeal confirmed that the Ombudsman cannot consider a complaint when the complainant has pursued an alternative remedy, even if it does not provide a complete remedy for the injustice claimed. (R v Commission for Local Administration, ex parte Field  EWHC 754 (Admin))
- The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
- We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. For example if:
- there is not enough evidence of fault to justify investigating, or
- any injustice is not significant enough to justify our involvement, or
- further investigation would not lead to a different outcome.
(Local Government Act 1974, section 24A(6))
How I considered this complaint
- I considered the information Mr F sent and the decision of the SEND Tribunal following Mr F's appeal.
- Mr F and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance
Special educational needs
- A child with special educational needs may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
- Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or description, the school named in their child's plan, or the fact that no school or other provider is named.
- The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
- The SEND Code of Practice says councils must review a child's EHC plan every 12 months. These annual reviews consider whether the provision remains appropriate and whether progress is being made towards the targets in the EHC plan. Councils are responsible for ensuring annual reviews take place, but they ask schools to convene them. The Council may agree to hold an early review if it considers the child’s needs have changed or if the plan is no longer meeting their needs.
- This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published 'Good Administrative Practice during the response to Covid-19'. This reminds councils that basic record keeping is vital during crisis working, and decision-making should be open and transparent even under emergency conditions.
- On 23 March 2020, due to the pandemic, all schools were closed for most pupils apart from those who were vulnerable and children of key workers. The Government issued an open letter on 24 March asking councils and education providers to carry out risk assessments to decide whether children and young people considered vulnerable, including those with an EHC Plan, should continue to go to school or could have their needs safely met at home.
- On 1 May 2020, the Secretary of State issued a notice which changed the absolute duty of councils to secure or arrange special educational needs provision to a duty to use "reasonable endeavours" to do so. In deciding what provision could and could not be made the council had to consider:
- specific local circumstances and workforce capacity
- the needs and specific circumstances of the child or young person
- the views of the child, young person and their parents about what may be appropriate.
- Mr and Mrs F’s son J has diagnoses of autistic spectrum disorder, severe speech and language delay and other conditions. The Council issued an EHC plan for J in 2019, when he was seven years old and attending a mainstream primary school (“the School”). This said he should receive 32.5 hours of one-to-one support from an applied behaviour analysis (ABA) tutor each week, daily speech and language therapy and other strategies and support.
- Mr F appealed to the SEND Tribunal in April 2020. The issues under appeal were whether J's special educational provision should include:
- Education other than at school for part of the school day.
- Speech and language therapy (SALT) for 60 or 90 minutes per week.
- SALT during the eight weeks of the school holidays.
- Specified occupational therapy (OT).
March to September 2020
- When schools were due to close due to the coronavirus pandemic in March 2020, Mrs F asked the School if J’s ABA tutor could come to their home. The School refused this request but said J could attend school for two days a week to receive ABA tutor support. It then agreed an ABA tutor could be put in place for the other three days at school, but Mr and Mrs F would have to find an independent tutor to do this. The School said the Council would have to fund any support at home.
- Mr and Mrs F told the Council J was not receiving any EHC plan provision and advised the School that J would not be attending due to the COVID-19 risks for him and themselves. Mr F found an independent ABA tutor on 1 April and asked the School to fund tuition at home.
- Mr F’s solicitor sent the Council a pre-action protocol letter on 2 April as it had not carried out a COVID-19 risk assessment. The Council replied that the School had done a risk assessment but would do another. It refused to fund a private tutor. It sent Mr F the risk assessment, which said J should attend school, receive ABA tutor support two days a week and a differentiated curriculum with one-to-one and small group support from other staff for three days a week. Mr F considered this to be inappropriate for J and that the risk assessment had not adequately assessed whether J’s needs could be safely met through his EHC plan being fulfilled at home.
- The Council and School produced another risk assessment and offered to provide three days of ABA support and two days of other provision at school. Mr and Mrs F remained dissatisfied.
- The Council replied that the School could provide the full 32.5 hours of ABA tutor support from 4 May. This could either be provided at school, remotely or as a combination. Mr F’s solicitor then issued a further pre-action protocol letter which said J’s ABA could not be delivered remotely. Mr F asked for tuition at home or a budget to fund private tuition.
- The Council replied with a further risk assessment on 19 May. It said J would receive support from the ABA tutor at school every day, but the assessment still referred to other support staff working with J two days a week. The Council would not fund or provide J’s ABA tuition at home as considered this was being offered at school.
- The Council emailed Mr F on 15 May inviting him to an EHC plan risk assessment mediation panel to be held on 22 May. Mr F was concerned the panel was not independent, there was no independent appeal process and he queried whether it was for “mediation” or “disagreement resolution”. Mr F considered the panel was an abuse of power by the Council. The Council said Mr F had been invited in error and the panel did not go ahead.
- In July the Council asked the School to invite Mr F to an emergency annual review to “formally initiate a change of placement” as it considered J was not making progress and the School said there was a high rate of SEN staff turnover. Mr F complained the School’s SENCO had not been involved, a change of placement had not ben raised at J’s previous annual review in November 2019, and that lack of progress was an insufficient ground on which to initiate a change of placement at a mainstream primary school for a disabled child. Following discussion between the Council and the School, the emergency annual review did not go ahead.
- J returned to school part time in September 2020; he was supported by the ABA tutor at school in the morning and in the afternoon at home by the independent ABA tutor.
SEND Tribunal findings
- The SEND Tribunal hearing was in October 2020. The Tribunal considered the issue of J having education other than at school for part of the school day. It found J had “shown significant progress in his communication and interaction skills” whilst having a tutor at home. The Tribunal was therefore “satisfied in principle that it is inappropriate to require J’s special educational provision to be delivered only in a school at this time.”
- The Tribunal ordered education other than at school for part of the school day to be included in J’s provision. It said the School was responsible for determining how this would be delivered. The Tribunal commented it was “concerned that [the headteacher] was hesitant about making arrangements for such a blended or split package of support. … [which was] … only a temporary measure.”
November 2020 onwards
- A new EHC plan was issued on 16 November 2020. Mr F complained to the Council about not being involved in planning the delivery of education other than at school and also about how it was being delivered. Mr F has made a separate complaint to the Council and Ombudsman about this.
- The law says we cannot normally investigate a complaint when someone has appealed to a tribunal or could take the matter to court. This means where a matter has been directly considered by the SEND Tribunal it will be outside our jurisdiction.
- Where matters have not directly been considered and determined by the SEND Tribunal (but were perhaps mentioned or referred to within the proceedings), the situation is more complex and must be carefully considered.
- Mr F appealed to the SEND Tribunal in April 2020 and the Tribunal considered whether education other than at school should be part of J’s SEN provision. The crux of his complaint to the Ombudsman is that the Council failed to secure J’s SEN provision as it refused to provide or fund an ABA tutor at home during the coronavirus lockdown.
- Whilst there may be reasons relating to COVID-19 (rather than the contents of the EHC plan) which caused this refusal, I find that the following complaints are inextricably linked to what was considered by the SEND Tribunal, but even if they are not, I have decided to use our general discretion not to investigate them as to do so would trespass on the work of the Tribunal:
- The Council failed to secure special educational needs provision from April to November 2020 for his son, J. Mr F says the Council could have made that provision at home or partly at home. - The Tribunal considered provision at home and we cannot remedy any lack of provision whilst the EHC plan was under appeal.
- The risk assessments were compromised because the School wrongly had a blanket policy that school staff could not work in family homes. - The Tribunal commented on the School’s concerns about providing tutors at home. In addition, I cannot investigate the actions or policies of the School.
- The Council failed to investigate and challenge the School about its prioritising provision for keyworker children. - The issue of J’s SEN provision, whether at school or at home, was considered by the SEND Tribunal.
- I have ended my investigation into complaints a) to e) and will incorporate my investigation of complaint f) into Mr F’s other complaint to the Ombudsman.
Investigator's decision on behalf of the Ombudsman