Summary: Mrs X complained about multiple failings by the Council regarding her disabled daughter’s special educational needs provision. We have not found fault with the Council’s actions. We are unable to investigate some of this complaint because they relate to issues that were the subject of an appeal to the Tribunal.

The complaint

1. Mrs X complains about the Council’s failure to support her daughter when she was unable to attend school and failure to comply with a Tribunal Order and EHCP. In particular, she complains about the following matters:
1. The Council’s refusal to name a suitable educational setting in her daughter’s EHCP, as she says was ordered by the Tribunal.
2. The Council’s failure to properly involve Child Y in the ECHP and transitional planning process.
3. The Council’s failure to provide social care support set out in the EHCP and ordered by the Tribunal.
4. The conduct of a social worker at a Tribunal hearing.
5. Delay in issuing an amended EHCP following a Tribunal hearing.
6. The Council’s failure to provide enough interim support while her daughter was out of school.
2. Mrs X says this has meant her daughter has not received a proper education for a significant period of time, adversely affecting her well-being and future prospects.

Back to top

What I have investigated

3. Insofar as is relevant to her complaint to the Ombudsman, Mrs X first complained to the Council in September 2018. As remains the case, the main issue in dispute was the type/location of educational provision and failure to provide other support. As they are the subject of either a previous or ongoing appeal to the Tribunal, I am unable to investigate some matters complained about, or those aspects of the complaint that are inextricably linked.
4. I have investigated b), c), d), e) and part of f) above. I have not investigated part of a) and part of f) because The Ombudsman has no jurisdiction where a parent has appealed to the Tribunal from the date the appeal right arises until the appeal is completed. Any loss of education or fault during this period which is a consequence of the decision being appealed is out of jurisdiction, even if this means the injustice will not be remedied.

Back to top

The Ombudsman’s role and powers

5. 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)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
7. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
8. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
9. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
10. 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)

Back to top

How I considered this complaint

11. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, guidance and Council policy and procedures. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

Education, Health and Care Plans

12. A child with special educational needs (SEN) may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the Tribunal can do this.
13. Parents and young people can appeal to the Special Education Needs and Disability Tribunal (the Tribunal) about the provision in the social care section of the EHCP.
14. The council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.

Key events

15. Mrs X has a teenage child with significant physical disabilities, Child Y. Child Y is fully dependent on others for all her daily care needs. She has an EHCP.
16. Up until April 2018, Child Y attended School B. She stopped attending because of bullying and did not return. Both School B and the Council attempted to reintegrate her back into school, albeit unsuccessfully. School B offered a place at an alternative venue but this was declined by Mrs X because she had lost trust in the school. School B was sending work for Child Y to complete at home.
17. From July 2018, the Council and School B jointly funded a home tutor. Mrs X says this made a positive impact on Child Y’s progress and anxiety and wanted this arrangement to continue.
18. She said the school proposed by the Council could not meet Child Y’s needs.
19. In September 2018, Mrs X complained about the following actions of the SEN department:

• Delay in providing a home tutor.
• Delay in the EHCP review process.
• Inadequate number of home tutor hours.
• Making unlawful amendments to the ECHP.
• Failure to identify a suitable school.

20. The Council responded in the following terms:

• It acknowledged the statutory timescales had been exceeded but this delay occurred because it was responding to additional points raised by Mrs X.
• The School and the Council had been working towards reintegrating Child Y back to School B.
• The Council was committed to identifying a suitable school.

21. The Council named School D in the Final ECHP. School D was part of the same educational trust as School B. For this and other reasons, it was unacceptable to Mrs X and Child Y.
22. In December 2018, Mrs X appealed to the Tribunal, asking it to make an order that Child Y should be educated at home.
23. At an interim hearing in June 2019, Mrs X says a social worker made an inappropriate, discriminatory remark to Child Y. Mrs X complained to the Council. In response, the Council said this type of complaint fell outside of its complaints procedure and was a matter for the manager to address with the employee.
24. The final Tribunal hearing took place in December 2019. The Tribunal decided that Child Y should be educated in a mainstream setting following a detailed and well-planned transition that was to begin in spring 2020. During the transition plan, Child Y was to continue to receive home tuition.
25. In February 2020, Mrs X complained to the Ombudsman. As this was made prematurely, the complaint was referred back to the Council to consider.
26. Her complaint included the following matters:
1. Incorrect/invalid EHCP that did not follow the Tribunal’s order and directions.
2. Failure to provide specialist teaching support specified in the EHCP.
3. Failure to ensure the process was “child-led” in accordance with the Tribunal judge’s directions.
4. Failure to provide heath support, including physiotherapy and occupational therapy.
27. In March and May 2020, the Council responded to Mrs Y, making the following points:

• It confirmed the finalised EHCP, although completed in time, was received by Mrs X three days later than it should have been.
• The additional specialist support was refused by Mrs X.
• The Council disagreed with Mrs X’s interpretation about the Tribunal’s directions about Child Y’s involvement in the process.
• Complaints about health services should be raised with the relevant health provider.
• The EHCP was fit for purpose.

28. Mrs X has since complained about the Council’s failure adhere to the EHCP to make social care provision available to assist Child Y during the day to support her while learning.

Current position

29. Since the Tribunal hearing in December 2019, the Council says it has been actively trying to engage with both Mrs X and Child Y to identify suitable mainstream post-16 education. At the time of writing this decision, Child Y remains out of education. The home tutor support ended in late June 2020. Mrs X’s preferred tutor was no longer able to provide support and Mrs X refused to accept the replacement tutor offered by the Council. Mrs X was of the strong opinion that her preferred tutor should be reinstated because of the good working relationship he had built up with Child Y. The Council explained to Mrs X why this was not possible.
30. An Annual Review of Child Y’s ECHP took place in June/July 2020.
31. The Council named a post-16 mainstream college (“the College”)in the EHCP that followed the Annual Review. The college said it could meet Child Y’s needs.
32. The final EHCP was issued in September 2020. Mrs X then had an opportunity to appeal to the Tribunal.
33. Despite Mrs X telling the Council the College was unsuitable for a number of reasons, including the course being offered is vocational rather than academic, she did not appeal.
34. In December 2020, the Council issued a notice of intention to cease the EHCP.
35. In February 2021, Mrs X made an application to the Tribunal to set aside the previous decision from January 2020. This application was made upon receipt of information she received following a subject access request. In response, the Tribunal set aside the decision because the Tribunal had made an error in law. The appeal went before a new panel in October 2021.
36. In allowing the appeal, the Tribunal ordered, amongst other things, that it was not appropriate to name any institution in Section I of the EHCP.

Analysis

37. A significant issue in this complaint is the Council’s decision to name a particular school in the EHCP. This is a matter only the Tribunal can adjudicate on. The law says the Ombudsman cannot investigate complaints that are inextricably linked to this.
38. For this reason, I have considered whether there was fault regarding the remaining complaints that remain within the Ombudsman’s jurisdiction.

The Council’s refusal to name a suitable educational setting in her daughter’s EHCP, as she says was ordered by the Tribunal

39. Due to limitations in the Ombudsman’s jurisdiction, I can only investigate what happened between the first Tribunal hearing and September 2020. This is when the Council issued a further final EHCP following the annual review. As from September 2020, Mrs X had the opportunity to appeal the setting named by the Council at section I. I consider it was reasonable for her to do so, particularly as her preference was for Child Y to be educated at home, which was contrary to the previous Tribunal decision.
40. In compliance with the order made by the Tribunal in December 2019, I am satisfied the Council took appropriate action to identify a suitable post-16 mainstream setting.
41. The records I have seen clearly demonstrate the Council was proactive in both sourcing a placement and trying to engage Mrs X and Child Y in the process. I do not underestimate how difficult and frustrating this was for the family at this time, particularly at such a pivotal time in Child Y’s life.
42. However, the fact a placement agreeable to Mrs X and Child Y was not found, is not necessarily evidence of fault by the Council. Evidence presented to the October 2021 Tribunal showed the Council consulted with up to 200 potential placements. While it is unfortunate that none were considered suitable by Mrs X and Child Y, the Council had a clear assurance from the College that it was able to fulfil the requirements of Child Y’s EHCP. The records show that the Council made several attempts to work with Mrs X and Child Y to ensure a successful transition.
43. For this reason, I am satisfied the Council complied with the Tribunal order that was in place at that time and so do not find fault.

Failure to properly involve Child Y in the ECHP and transitional planning process

44. Mrs X says the Council has failed to involve Child Y when making decisions about her education and wellbeing. In particular, that it ignored a direction from the Tribunal judge that any decision about where and how Child Y should be educated (and named at Section I of her EHCP) should be “child-led”.
45. The evidence I have seen does not support this conclusion. The case records demonstrate the Council has consistently tried to engage with both Mrs X and Child Y about her future educational provision. Whilst this has not been successful, this does not necessarily mean the Council acted with fault. I have decided it did not.
46. The records demonstrate many attempts by the Council to identify a suitable mainstream setting and devised a transitional plan, in accordance with the Tribunal direction.
47. Over 20 educational settings were proposed as being potentially suitable, although evidence later presented to the second Tribunal indicates it was many more. The Council offered to meet with Child Y on several occasions to ascertain her preferences. While I understand both Child Y and Mrs X were reluctant for her to do so because of the anxiety this caused, this inevitably led to the Council’s difficulty in identifying a suitable placement for her.
48. Child Y was given the opportunity to attend the transitional review in order to express her views although was too distressed to do so.
49. In addition, the Council made information available to encourage Child Y to have an independent advocate to support her in this process. Following discussion with Child Y, the advocate chosen by Mrs X advised the Council of Child Y’s views and preferences.
50. It is clear from reading the extensive correspondence that the family had lost confidence in the Council’s ability to understand what would work best for Child Y. They were disappointed with the Council’s decision to withdraw the private tutor support and instead focus on sourcing a mainstream placement. I do not criticise the Council for this approach as this is what the Tribunal had decided upon. It made many attempts to engage with Child Y and offer her support in making her voice heard.
51. This impasse led the Council to name the College in the revised EHCP. At this point Mrs X was able to appeal this matter to the Tribunal, but she did not do so. Instead, Mrs X appealed to the Secretary of State and also lodged an appeal against the Tribunal’s decision from December 2019. This appeal was heard in October 2021.

Failure to provide social care support set out in the EHCP and ordered by the Tribunal

52. Mrs X says the Council has failed to implement part of the social care package that was agreed prior to the Tribunal hearing in December 2019 and included within the Final EHCP issued in February 2020 (amended March 2020), specifically support during the school day to assist with personal care.
53. In reaching my decision about this matter, I have considered the Tribunal Order, the Final EHCP, Mrs X’s complaint correspondence and the Council’s SEN case records.
54. The Tribunal Order confirmed the social care provision set out in Section H of the EHCP was agreed by the parties. In the resulting Final EHCP, the Council agreed to provide two workers from 8am to 10am and from 2.30pm to 6pm, “to assist with Child Y’s personal care needs and to ensure her safety while her parents are at work”. The EHCP (within Section F) also provided for Child Y to receive “support from two adults within school hours…..to assist with personal care needs throughout the day”. This was to be provided by, “Home tutor and teaching and care support staff within an educational setting”.
55. Mrs X complained about the Council’s failure to provide support between 10 am and 2.30 pm. Her understanding was that Child Y should have the benefit of a carer and teaching assistant during the transitional home tutoring.
56. The Council says Mrs X misunderstood what was agreed as part of the Tribunal process. It accepted that the relevant part of Section F should have been aligned to be read alongside the words “whilst in an educational setting”. It says this was corrected and clarified during the subsequent review and revised EHCP (issued in September 2020).
57. Having reviewed the available evidence, I am satisfied the Council’s social care provision was in accordance with the ECHP. The Council’s position was explained to Mrs X when she raised her concerns with officers and during the complaints procedure. I do not agree with Mrs X that the Council acted contrary to the Tribunal Order. The hours of social care support were specified in both the Tribunal Order and resulting ECHP.
58. I am satisfied the Council has tried to engage with Mrs X to explain its position. As this did not work, the Council followed the correct procedure by arranging a review. The resulted in another Final ECHP being issued in September 2020.

Conduct of the social worker at the Tribunal hearing

59. Mrs X complains the social worker made an inappropriate and discriminatory comment to Child Y at the Tribunal hearing. She says this caused Child Y considerable embarrassment and distress. The Council says it has not dealt with this through its complaints process. Instead, it has treated it as an internal management matter.
60. This outcome means the Council has neither accepted nor rejected Mrs X’s version of events. While I understand why Mrs X feels frustrated by this outcome, to deal with it in this way was a decision the Council was entitled to make and for this reason I have not found fault.

Delay in sending the revised EHCP following the Tribunal’s order

61. The law says a ECHP should be issued with five weeks from the Tribunal Order.
62. In this case, the Tribunal issued its decision on 7 January 2020. The EHCP, while dated 10 February was not received by Mrs X until 15 February.
63. The Council accepted there was a slight delay of three days. The Council has already acknowledged this and apologised to Mrs X. This is an appropriate and proportionate outcome, and the delay was not significant enough for me to make a formal finding of fault.

The Council’s failure to provide enough interim support while her daughter has been out of school

64. For the reason set out in paragraph 3 above, the Ombudsman has limited jurisdiction over matters that have been appealed to the Tribunal. For this reason, I have only considered what happened between:
1. when Child Y left School B in April 2018 and to when Mrs X appealed to the Tribunal in December 2018; and
2. when the Council issued the final EHCP in March 2020 and September 2020, when Mrs X had a right of appeal to the Tribunal.
65. Since July 2018, the Council provided a home tutor for Child Y. Mrs X says she was happy with this support and wanted it to continue, as she explained to the Tribunal.
66. Whilst I have noted Child Y was without any educational support between April and July 2018, during this time, School B was trying to work with Mrs X and Child Y to reintegrate her back into school and was providing work for her. The Council acted as intermediary during these discussions.
67. I acknowledge this was unsuccessful, but I am satisfied that, once it became clear the relationship between Mrs X and Child Y had School B had broken down, that the Council acted promptly to arrange alternative education. For this reason, I have not found fault in respect of this area of complaint.
68. I am also satisfied the Council either provided or offered suitable educational provision for the later period. Up until late June 2020, Child Y was provided with a home tutor. Mrs X says she was happy with this arrangement as was keen for it to continue. It is unfortunate that her preferred tutor was withdrawn. But the case records show this was beyond the Council’s control and it responded appropriately by offering a replacement tutor during the transitional period. Mrs X declined this offer.
69. Because of this, I do not find the Council to be at fault here. I am satisfied the Council made suitable arrangements but were refused by Mrs X.

Back to top

Final decision

70. The Ombudsman cannot investigate part of the complaint and has found no fault elsewhere.

Back to top

Parts of the complaint that I did not investigate

71. The Ombudsman has no jurisdiction where a parent has appealed to the Tribunal from the date the appeal right arises until the appeal is completed. For this reason, I have not investigated part of a) and part of f) of Mrs X’s complaint.

Back to top

Investigator's decision on behalf of the Ombudsman