Summary: Mrs X complains on behalf of her son Mr X, a young adult with disabilities, that the Council’s participation strategy for young adults with disabilities is not inclusive and that he has been excluded. Although the Council has provided several ways to gather the views of young people, Mr X has not been able to take part. However, its actions do not breach the SEND Code of Practice, so it has not been at fault.

The complaint

1. The complainant, whom I shall call Mr X, is a young adult with disabilities, represented by his mother, Mrs X.
2. Mrs X complains on Mr X’s behalf that the Council’s participation strategy for children and young people with disabilities is not inclusive to all. She says the Council organised a consultation event on 29 May 2018 to gain the views of children and young people with disabilities, but that the venue was unsuitable for Mr X, by virtue of noise, light and crowding. She says the Council failed to consider any alternative arrangement such as a home visit to enable Mr X to participate.
3. Mrs X says Mr X has been excluded.

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What I have investigated

4. I have investigated the complaint above. But I have not considered whether there has been any disability discrimination against Mr X as this is not a matter for the Ombudsman. Instead, I have considered whether the Council has complied with the Special educational needs and disability code of practice 2014 (the SEND Code) in relation to Mr X.

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The Ombudsman’s role and powers

5. 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)
6. 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 decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. The SEND Code states at Paragraph 1.11 local authorities must consult young people with SEN or disabilities in preparing and reviewing their local offers of services. Paragraph 1.12 states local authorities should make use of forums representing the views of children and young people directly. It suggests local authorities should consider establishing them where they do not exist.
8. The SEND Code provides further details at Paragraph 4.11. It again states “local authorities must engage young people directly”. And it says they “should make every effort to engage a cross-section of young people with a range of SEN and disabilities, in a variety of settings and circumstances and at different ages within the 16-25 range”.
9. Paragraph 4.12 provides further guidance on accessibility of venues for consultation events. It states local authorities should consider timing, transport, physical accessibility, the accessibility of content and age appropriateness.
10. SEND is a tribunal that considers special educational needs and disability. (The Special Educational Needs and Disability Tribunal (‘SEND’))

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How I considered this complaint

11. I read Mrs X’s complaint and spoke to her on the telephone. I considered the SEND Code and made written enquiries of the Council. I considered the Council’s response to those enquiries. I shared a draft of this decision with both parties and invited their comments. I received none.

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What I found

12. The SEND Code makes it clear local authorities must consult young people with SEN or disabilities in preparing their local offer. They must also engage directly with young people. These provisions are mandatory.
13. However, the further provisions about the methods of consultation are not mandatory. A local authority should adhere to them, but may depart from them if there is a good reason for doing so. There is no requirement that every young person with SEN or disabilities should be consulted, though there should be a variety of needs and views represented among those consulted. And there is no requirement that all events should be accessible to all.

What happened and was it fault?

The event on 29 May 2018

14. This was unsuitable for Mr X because it was noisy, brightly lit and crowded. But the SEND Code did not require this individual event to be suitable for him unless it was the sole method of consultation the Council used.
15. While the Council at first made an error by excluding carers when it planned this event, it rectified this before the event took place. However, this is not relevant to Mr X, because the noise, lighting and crowding meant he could not have attended.
16. For the reasons above, I do not find the Council at fault.

Alternatives available to Mr X

17. The Council organised two other events with different themes. Mr X attended the first, but found it distressing and had to leave. It is reasonable to assume he would not have been able to attend the third event either.
18. The Council has listed other ways in which children and young people with SEN or disabilities can give their views. Most of them would not be available to Mr X.
19. Mr X’s needs are unlikely to be unique in the Council’s area. It has recently appointed a worker to engage with young people with SEN or disabilities. It would therefore be good practice for the Council to consider some sample home visits to gain the views of those who cannot attend the other opportunities provided. However, the SEND Code does not require the Council to consult every young person with SEN or a disability, or even a representative person with every kind of SEN or disability. This matter is left open to interpretation. So, I cannot say it would be fault if the Council decided not to conduct such a home visit to Mr X. So, I do not find it at fault for not having done so.

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Final decision

20. I have not upheld the complaint as the Council’s actions did not amount to fault. I have completed my investigation.

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Parts of the complaint that I did not investigate

21. I have not considered if the Council’s participation strategy is inclusive to all in the sense of disability discrimination. Such matters are not for the Ombudsman to decide.

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Investigator's decision on behalf of the Ombudsman