Summary: Mr F complains the Council refused to pay for alternative education for his son, B, when he withdrew him from school. Mr F’s complaint comes down to a difference of opinion about how best to meet B’s special educational needs. The Council amended B’s EHC Plan after Mr F withdrew him from school. Mr F disagrees with the changes, but the Ombudsman cannot consider the matter as he had a right of appeal to the Tribunal.

The complaint

1. Mr F complains the Council refused to pay for alternative education for his son, B. He says B was let down by two schools and developed a phobia about going to school as a result. Mr F says he felt he had no alternative but to withdraw B from school. He found an online education programme which he believes meets B’s needs. He complains the Council has refused to pay for it.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
4. 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)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. 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

7. I have considered:
• information provided by Mr F;
• information provided by the Council;
8. I invited Mr F and the Council to comment on my draft decision.

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What I found

9. Mr F’s son, B, has an Education, Health and Care (EHC) Plan maintained by the Council. He has autism and suffers from anxiety.
10. Problems started shortly after B moved to secondary school in September 2018. Mr F says the school refused to make reasonable adjustments that were not specified in B's EHC Plan. Mr F says he instructed a solicitor to take action against the school.
11. The Council held an emergency review of B's EHC Plan in November 2018, arranged extra provision and devised a return to school plan. Although there was some improvement, B’s anxiety continued to impact his attendance. Mr F decided to move B to a different school.
12. The Council suggested B attend a special school or specialist resource base. Mr F does not consider these would be suitable. He says B is too bright for a special school, and he would not be prepared to travel to the specialist resource base because of an incident in a taxi when he attended previously.
13. Mr F asked for a different secondary school to be named in B's EHC Plan. The Council agreed. B started at a new school in September 2019.
14. Mr F complains the new school failed to support B's anxiety. After one week, in which B was unable to get past reception, Mr F asked the head teacher to remove B from the school's roll.
15. The school referred the matter to the Council’s Elective Home Education Service and the Council’s Children Missing Education team contacted Mr F. Mr F explained he had found an online learning programme and requested funding from the Council’s Special Educational Needs Panel. Mr F says B is better able to cope without the distractions of the school environment, and his mother can support him at home. He said he would challenge the Panel’s decision if funding was not approved.
16. The Special Educational Needs Panel did not approve funding for the online learning programme. The Council reviewed and amended B’s EHC Plan. The amended Plan says the Council considers any mainstream secondary school could meet B’s needs, but Mr F has chosen to make his own arrangements. The plan says if Mr F is no longer willing or able to make alternative arrangements, the Council would expect B to transfer to the nearest secondary school.
17. Mr F seeks to challenge that decision. In the meantime, he has funded the online learning package himself.
18. Mr F complained to the Council in November 2019. He sent a comprehensive letter which explained why B no longer attended school and why he wanted the Council to fund online learning for him.
19. The Council responded to Mr F's MP. The Council said Mr F is responsible for the cost of tuition as he has chosen to educate B at home. The Council does not consider the online learning to be special educational provision it could fund to meet B's special educational needs.
20. Unhappy with the Council's response, Mr F complained to the Ombudsman.

Consideration

21. Mr F believes B’s secondary schools failed him. I have neither the authority nor the expertise to judge. My job is to consider the Council’s response to Mr F’s request to fund online learning for B.
22. Mr F has arranged B’s education himself, although he has made it clear he has only done so because he feels he had no other option. He told the Council he does not consider the arrangement to be elective home education, but he has not accepted the Council’s offer to secure a school place for B, either in mainstream or special education.
23. While Mr F’s wish to secure the best possible education for B and his frustration that the two secondary schools have not worked out are understandable, online learning is not the only option for B’s education.
24. What Mr F’s complaint comes down to is a difference of opinion about how best to meet B’s special educational needs. The Council believes they can be met in school, either a mainstream or a special school. Mr F believes they can only be met by B following a programme of online learning from home.
25. Where parents and councils cannot agree on questions concerning special educational needs, there is a specialist Tribunal for resolving disputes. Mr F has told the Council he does not wish to appeal to the Tribunal. However, an appeal is the only way to resolve the dispute. The Ombudsman has neither the authority nor the expertise to decide how B should be educated.
26. I began my investigation to check the Council had followed the correct procedures following Mr F’s decision to withdraw B from school. I wanted to check whether the Council had considered the suitability of home education for B. The evidence the Council provided satisfied me it had. The Council had decided B would be best in school, although it had respected Mr F’s right to make his own arrangements. This was reflected in B’s amended EHC Plan.
27. My enquiries have established that it would not be appropriate for me to investigate Mr F’s complaint further. He had a right of appeal against B’s EHC Plan and it would have been reasonable for him to have used it. Mr F wanted to avoid the time and expense of an appeal. There are no fees for parents to pay to lodge an appeal, and while an appeal can be time consuming, lodging an appeal would have guaranteed a decision without preventing Mr F and the Council attempting to resolve their disagreement more quickly.
28. In responding to my enquiries, the Council reviewed B’s case and agreed to fund the online learning programme Mr F has chosen. While I am sure this will be welcome news for Mr F, it does not alter my views.

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Final decision

29. I have ended my investigation. The Council amended B’s EHC Plan after Mr F withdrew him from school. Mr F disagrees with the changes, but the Ombudsman cannot consider the matter as he had a right of appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman