The Ombudsman's final decision:
Summary: Mr L complains the Council failed to consider his allegations of a lack of safeguarding at his son’s school or to make provision when Mr L withdrew him from that school. Mr L says his son was unable to take advantage of the services specified in his Education, Health and Care Plan. Mr L also says he was caused time, trouble and distress by the Council’s actions. Investigation into this complaint has been discontinued.
- The complainant, whom I shall call Mr L, complains the Council:
- failed to respond or investigate his concerns, raised in July 2019, regarding safeguarding at his son, M’s, school and about M’s personal safety;
- ignored his concerns, and without prior warning or discussion, named the school in M’s delayed Education, Health and Care Plan (EHCP) in August 2019;
- ignored his request, made in July 2019, for placement at a different school;
- refused to provide alternative education or EHCP support leaving M without either from January 2019 to February 2020;
- failed to answer his calls, or emails or engage in discussion regarding M’s ongoing suffering and blocking his emails; and,
- conceded prior to the SEND hearing that M’s school was unsuitable yet failed to secure EHCP provision and education at that school until February 2020.
The Ombudsman’s role and powers
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- The Ombudsman has no jurisdiction where a parent has appealed to SEND from the date the appeal right arises (i.e. when an Education, Health and Care Plan is issued) until the appeal is completed.
- The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration  EHWCC 2847 (Admin))
- 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)
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
- 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)
How I considered this complaint
- I considered Mr L’s complaint and the additional information he sent to highlight the scope of his complaint, which I have written out in full above. I also considered Mr L’s previous complaint to us. I sent Mr L and the Council a copy of my draft decision and took comments they made into account before issuing a decision.
What I found
- Under section 19 of the Education Act 1996 councils have a duty to make arrangements to provide suitable education for children who may not receive this unless such arrangements are made for them. We cannot say what provision is suitable for a child.
- The court has agreed that a council’s alleged failure to provide alternative education for a child with special educational needs who is out of school, when the alleged failure is ‘inextricably linked’ to a placement which is the subject of appeal (or to a decision not to name a school in an Education, Health and Care Plan), is not in our jurisdiction.
- We have no jurisdiction, where a parent has appealed to the SEN Tribunal, from the date the SEN appeal right arises (i.e. when the Plan is issued) until the appeal is completed. This applies even when a parent delays submitting an appeal or there is an adjournment. All working documents are also outside of our jurisdiction.
Mr L’s complaint
- Mr L complained about the way the Council had dealt with him and his son, M, who is disabled.
- Mr L previously came to us with a complaint, which went up to August 2019 and he has another complaint with us dating from February 2020. I am not investigating matters prior to August 2019 because they could have formed part of his previous complaint. This means I am not looking parts a), b) or c) of Mr L’s complaint. In the previous complaint we acknowledged the Council’s delay in issuing M’s Education, Health and Care Plan (EHCP) in August 2019. M was out of school and Mr L was told the provision specified within the EHCP could not be delivered because of this. We decided this was not evidence of Council fault.
- In relation to part b), we cannot say what school should be named in a child’s EHCP or comment on the basis for a school to be named. Once the Council named a school in M’s EHCP, the way to challenge it was for Mr L to go to SEND, which he did.
- Mr L believes the Council had a section 19 duty to provide education to M given he was out of school before the EHCP was issued; before Mr L could go to SEND. This is part d) of his complaint. Mr L told me he “had absolutely no choice but to remove (M) due to the clear danger he was in”. Mr L has not provided me with evidence of ‘clear danger’. He has supplied two injury reports from the school, dated the same day (and within an hour of each other) relating to incidents between M and two different young people. Moreover, these incidents (and him withdrawing M from school) happened over the period of time covered by his previous complaint to us so, for the same reasons set out above, I am not considering this part of his complaint.
- As I also said above, the court has said we cannot consider the Council’s actions over the time between when Mr L was able to appeal, once the EHCP was issued in August 2019, and SEND’s judgement. Part f) of Mr L’s complaint, that the Council did not change the named school (even if the Council conceded prior to the SEND hearing that the named school did not now meet M’s needs), is not something we can look at. Mr L comments the Council agreed to provide ‘a blended offer of Alternative Tuition…and (a) two-day placement at (a farm)’ in January 2020. It was not ordered to do this by SEND, where proceedings were underway at the time, so I am not considering it. The Council was ordered to name a different school in M’s EHCP in June 2020 even though M was attending that school from February 2020, but this is not part of the complaint I am investigating.
- The only remaining part of Mr L’s complaint is part e), which concerns how the Council handled contact from Mr L while his appeal to SEND was ongoing. I have already set out that we have no jurisdiction where a parent has appealed to SEND from the date the appeal right arises to when the appeal is concluded. Mr L’s contact with the Council over this time related to SEND matters. Mr L has told me he was contacting the Council about M’s education and in relation to EHCP support, which are properly matters for SEND. This means the way the Council managed its contact with Mr L is also outside of our jurisdiction.
- I have discontinued my investigation into Mr L’s complaint.
Investigator's decision on behalf of the Ombudsman