Summary: there has been considerable disruption to G’s education since May 2017, and while this is regrettable, it is not the result of fault by the Council. I will not consider events before May 2017.

The complaint

1. Miss M complains about arrangements made by the Council for her granddaughter G’s education since she started secondary school in 2014. G has special educational needs. She has missed a considerable amount of school because of anxiety.

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What I have investigated

2. Miss M first complained to us in January 2018. G was out of school and Miss M was unhappy with the arrangements the Council had made for her education. She was particularly unhappy G was not receiving the therapeutic input required by her EHC Plan. We did not uphold Miss M’s complaint. Miss M challenged our decision. A manager reviewed the case and decided we should look again at Miss M’s complaint. We also agreed to consider whether we should investigate earlier events, since there have been problems with G’s education for a number of years.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decisions were right or wrong simply because the complainant disagrees with them. We must consider whether there was fault in the way the decisions were reached. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. 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)
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
8. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
9. If we are satisfied with a council’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

10. I have considered:
• information provided by Miss M;
• information provided by the Council.
11. I invited Miss M and the Council to comment on my draft decision.

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What I found

12. Miss M is a Special Guardian for her granddaughter, G.
13. G has complex needs: ADHD (diagnosed in 2014), social communication disorder, sensory difficulties and oppositional defiance disorder (diagnosed in 2015) and autistic spectrum disorder (diagnosed in 2017). G also suffers from anxiety.
14. G has had an Education, Health and Care Plan maintained by the Council since 2016.
15. There have been problems with G’s education since she started secondary school in September 2014. I will set out a brief chronology below.

September 2014 – January 2017

16. G began her secondary education at School A, a mainstream secondary school, in September 2014. She was excluded from school and spent time at a pupil referral unit in January 2015. She returned to School A on a part-time timetable.
17. In May 2015, G refused to go to school. Miss M requested an Education, Health and Care (EHC) needs assessment. The Council refused.
18. Between October and the beginning of December 2015, G attended the pupil referral unit for 20 hours a week. She remained on roll at School A.
19. Miss M requested an EHC needs assessment again following G’s diagnosis of social communication disorder and oppositional defiance disorder. The Council refused.
20. Miss M says G did not receive any education between December 2015 and January 2017. School A said it could not meet G’s needs.
21. Miss M requested an EHC needs assessment again in May 2016. The Council agreed. The Council issued an EHC Plan on 4 July 2016. The Council issued a revised Plan on 2 February 2017 which said G would attend an independent special school in a neighbouring council area. G joined the school in January 2017.

January 2017 – January 2018

22. G attended the special school until May 2017. Miss M says G did not feel safe there. She does not consider the school was suitable for G’s needs.
23. Miss M and the Council began to look for an alternative school. As an interim measure, the Council funded tuition for G at home. Miss M was unhappy with the Council’s proposals to amend G’s EHC Plan and appealed to the Tribunal.
24. Miss M complained to the Ombudsman in January 2018. She was unhappy G was out of school and dissatisfied with the tuition provided by the Council. In particular, she was unhappy G was not receiving full-time education and the therapeutic input required by her EHC Plan.

January 2018 to July 2018

25. The Council continued to provide home tuition. Miss M and the Council finally reached an agreement on plans for G’s education in June 2018 which concluded Miss M’s appeal to the Tribunal.
26. G joined a specialist pupil referral unit in June 2018.

Consideration

27. I have considered Miss M’s complaint anew. I have considered all the information gathered during our previous investigation, including evidence provided by the Council and a detailed and helpful commentary from Miss M. I have reached my own conclusions which I set out below.
28. It is common ground that G has complex special educational needs which, together with her mental health, present significant challenges for her education. Miss M has worked tirelessly to secure the best possible education for G and continues to do so.
29. In considering Miss M’s complaint, I do not offer my own views about the education G should have received. I have neither the authority nor the expertise. My job is to check the Council followed the correct procedures when problems arose. I cannot question council decisions taken without fault, no matter how strongly Miss M disagrees.

Where to begin?

30. As set out in paragraph 5, the law which gives us the power to investigate complaints says a complaint must be made within 12 months, although we can make exceptions.
31. G has lived with Miss M since 2016, although Miss M did not become her Special Guardian until February 2018. Miss M complained to us in January 2018 because she was unhappy with the arrangements for G’s education since she stopped attending the special school in May 2017. Since making her complaint, Miss M has described problems with G’s education dating back to 2014 when G started secondary school. She would like the Ombudsman investigate these, too.
32. Miss M asks us to take into account the fact her energies were needed elsewhere when considering whether to investigate matters more than 12 months before she complained. Miss M has explained the significant personal challenges she has helped G to overcome since she came to live with her as a teenager. The details are too personal to repeat here, but I have taken full account of them.
33. I decided to begin my investigation when G stopped attending the special school in May 2017. I decided not to investigate events before this, although I acknowledge there was significant disruption to G’s education and she did not attend school for significant periods. I have chosen this date because it was G’s lack of education when she stopped attending the special school which prompted Miss M to complain to us.
34. I have based my decision on my assessment of three factors: the likelihood I would find fault by the Council; the extent to which I could say any fault by the Council had caused injustice to G; and the possibility I could recommend a remedy for any injustice that would put G back in the position she would have been in if the fault had not occurred.
35. Making judgements about the Council’s role in G’s education in the period before Miss M obtained a Special Guardianship Order for G poses challenges since G’s mother was involved and she is not part of my investigation. When problems arise, arrangements for a child’s education involve a three-way collaboration between parents, school and the Council. To investigate a complaint and be fair to both sides, I need to consider the actions of the Council and the parent. I am satisfied I can do this from when G stopped attending the special school in May 2017, but not before.
36. There is a further problem. I have to base my assessment of the Council’s actions on the evidence that was available at the time. I cannot judge the Council with the benefit of hindsight. G’s needs have only slowly come to be understood. The Council agreed to assess G’s education, health and care needs in May 2016 and issued an EHC Plan in July 2016. Although the Council refused Miss M’s earlier requests for assessments, this is not something I will consider since Miss M had a right of appeal to the Tribunal. The Tribunal is a specialist body established to resolve disagreements between parents and councils about children’s special educational needs. The Ombudsman has neither the authority nor the expertise.
37. Finally, if the Ombudsman finds fault by a Council, we may recommend the Council take action to put the person affected back in the position they would have been in if the fault had not occurred. In G’s case, now that she has an EHC Plan, she is entitled to support until she is 25. This will give her an opportunity to catch up on the education she has missed, regardless of whether it is the fault of the Council or not. It is unlikely I could recommend a different, practical remedy for any fault that occurred before May 2017.

And where to end?

38. Miss M complained to the Ombudsman in January 2018. Plans for G’s return to school were not in place until June 2018. While I have considered Miss M’s complaint until G’s return to school, I cannot consider G’s education once Miss M lodged her appeal with the Tribunal. Her complaint is outside the Ombudsman’s jurisdiction from this point.

G’s education between May 2017 and July 2018

39. G stopped attending the special school in May 2017. Miss M says she was concerned for G’s safety. Miss M appears to have had reservations about the type of school G attended. The special school is a specialist therapeutic school offering bespoke therapeutic education. Miss M says most of the pupils were boys with challenging behaviour.
40. I do not dismiss Miss M’s concerns. However, the school was named in G’s EHC Plan as the school she should attend, and the Council made a place available for her. The correct way to change plans for G’s education was through a review of her EHC Plan and, if Miss M and the Council could not reach an agreement, an appeal to the Tribunal. This is what happened. There is no fault by the Council.
41. When G stopped attending the school, the Council funded tuition at home for her as an interim measure while Miss M and the Council looked for an alternative school. I understand the amount of tuition and the subjects covered were agreed between Miss M and the Council. However, Miss M complains G missed the therapeutic input she would have received if she had attended school. I do not doubt this was the case. The tuition G received at home will have been different from the education she would have received at school in other ways, too. The provision arranged by the Council was not intended to replace G’s school education. It was an interim measure until a school place was found. The Council attempted to find an alternative school place without delay, and I do not find the Council at fault for the therapeutic input G missed when she stopped attending school.
42. In any event, the therapeutic input in G’s EHC Plan was not a discrete service the Council could provide independently from G’s attendance at the special school. It formed part of a detailed list of special educational provision to be delivered by the school and specified in Part F of her Plan.
43. Regrettably, Miss M and the Council were unable to reach agreement about an alternative school place for G. Miss M appealed the Council’s proposals to the Tribunal. This will have added to the time taken to resolve the matter. However, the Ombudsman cannot consider G’s education once Miss M appealed to the Tribunal, or consider the delay caused by the appeal.

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Final decision

44. I have completed my investigation. There has been considerable disruption to G’s education since May 2017, and while this is regrettable, it is not the result of fault by the Council.

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Parts of the complaint that I did not investigate

45. I did not consider events before May 2017 for the reasons set out in paragraphs 33 to 37 above.

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Investigator's decision on behalf of the Ombudsman