Summary: The Ombudsman cannot investigate how an educational setting used its funding, as the law prevents us doing so, nor why the Council paid funding to the school.

The complaint

1. The complainant whom I shall call Ms X, complains about the Council’s special educational needs payments policy, its labelling of her child and its payments made to meet her child’s needs.

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The Ombudsman’s role and powers

2. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify the cost of our involvement. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. I considered the information Ms X provided with her complaint and a previous complaint she made. I considered the comments Ms X made on a draft version of this decision.

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What I found

5. Ms X says the Council misused public funds. She says money allocated to her child, B, for special educational needs has not been used for the purposes it was paid.
6. Ms X says B’s needs were assessed and a payment made to their pre-school setting from December 2017 to July 2018, and to B’s school since September 2018. She says none of the payment was used to meet B’s needs. Ms X also says the Council wrongly labelled B as highly autistic and lacking social skills.
7. She says she has had to pay privately for the therapy B needed. She says she paid for private speech and language therapy between September and December 2018.
8. Ms X says the Council’s policy on providing the payments to the pre-schools is wrong. She would like it paid directly to the professionals involved instead.

Analysis

9. Ms X complained to us separately about a special educational needs assessment carried out on her child in December 2017 and the alleged failure to meet the child’s needs. That complaint considered the fault and injustice caused to Ms X by the assessment for the first pre-school B attended. We cannot look at that again.
10. This means this complaint covers the period after B left the first pre-school.
11. We cannot investigate how an educational setting uses its funds to meet its pupils’ educational needs when the child does not have an Education Health and Care Plan (EHC Plan). B did not have an EHC Plan while at the second pre-school setting nor in the Autumn term of 2018 at school.
12. The Council decided in August 2018 it did not need to formally assess B’s educational needs. Ms X appealed that decision to the Tribunal SEND. It made its decision in December 2018. It said the Council did need to assess B’s needs. Since then the family have moved to another country.
13. We cannot investigate the failure to make a provision, above that expected within normal school education, during the period the Tribunal was considering the appeal. This means Ms X’s decision to employ a private therapist during that appeal time is not one we can consider. During the period she paid for the private therapy the Council had no duty to provide it.
14. We will not investigate Ms X’s complaint about the policy on pre-school special educational need funding. The first pre-school setting’s assessment and funding is considered within a separate complaint. Ms X says she has no complaints with the second pre-school placement.
15. We will not investigate Ms X’s complaint that the Council wrongly labelled her child. The personal injustice which directly flows to Ms X from this is covered in the paragraphs 9 – 14 above. There is nothing separable from those sections.

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Final decision

16. The Ombudsman will not and cannot investigate this complaint. This is because we cannot investigate how an educational setting uses its funding, it is unlikely we would find fault in the Council not providing the therapy before the Tribunal’s decision and there is no personal injustice which directly flows from the Council’s fault which we could investigate.

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Investigator's decision on behalf of the Ombudsman