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Suffolk County Council (19 017 661)

Category : Education > Special educational needs

Decision : Closed after initial enquiries

Decision date : 19 Jun 2020

The Ombudsman's final decision:

Summary: Mrs B complains that the Council failed to arrange suitable alternative education and SEN provision for her daughter. The Ombudsman cannot assess the extent of any fault or recommend a remedy, until the provision they should have been receiving is known. A Tribunal is currently deciding this. Mrs B’s can complain to the Ombudsman again when the outcome of the tribunal is known.

The complaint

  1. The complainant, whom I shall refer to as Mrs B, complains that the Council failed to provide alternative education and SEN provision for her daughter. I shall refer to Mrs B’s daughter as D.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  4. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

  1. I considered:
    • Mrs B’s complaint and the information she provided; and
    • documents supplied by the Council.
  2. I also sent a draft version of this decision to both parties and invited their comments.

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What I found

What happened

  1. D had a place at a mainstream primary school, which the Council considered was suitable to meet her needs.
  2. Mrs C asked the Council to carry our an EHC assessment of D, but it refused. She appealed to the SEND tribunal, which upheld Mrs C’s appeal. The Council therefore started the assessment process.
  3. During September 2019, D’s school attendance became sporadic. Mrs B says this is because her SEN needs were not being met.
  4. In October 2019, the School arranged a part-time education timetable for D.
  5. When Mrs C complained that the provision in place for D was unsuitable and did not amount to a full-time education, the Council said she should need to provide medical evidence that D was unable to attend school.
  6. In its stage 2 response, the Council said on reflection it should have worked with Mrs C to gain the medical evidence, so it could ascertain if the provision in place was suitable and that it would carry out a review of the case.
  7. The Council issued a draft EHCP in March 2020 naming a new school placement to start in September 2020. Mrs B was happy with this placement, although remained dissatisfied with D’s primary school place, which she said could not meet her needs.
  8. Mrs B was also unhappy with other elements of the EHCP, including D’s SEN provision. Mrs B therefore appealed to the SEND tribunal.

Analysis

  1. When investigating complaints about alternative provision we would look at the education and any SEN provision that should have been provided by the school. If we find fault, we look at what injustice that fault caused the child and family. We may also investigate other elements, such as delays issuing the EHCP.
  2. We have published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a council. Our primary aim is to put people back in the position they would have been in if fault by the Council had not occurred. Where this is not possible, we may recommend the Council makes a financial payment.
  3. The Ombudsman cannot currently assess the impact of any fault on the child and family until it is known what SEN support the child should have received. We will not know this until the Tribunal has finished. It is not right for us to investigate this complaint until then.

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Final decision

  1. I have discontinued my investigation on the basis that the Ombudsman cannot assess the impact of any delay or recommend a remedy until the case has been decided by the tribunal. Once this has been done Mrs B may complain to the Ombudsman again.

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Investigator's decision on behalf of the Ombudsman

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