Summary: Mrs X complained the Council failed to provide support for her son who has special educational needs whilst he was out of school, and failed to adequately investigate her safeguarding concerns about the school. The Council was not at fault.

The complaint

1. Mrs X complained the Council failed to:
1. Provide a suitable alternative education for her son, Y, when he was out of school from November 2019;
2. Provide the educational support set out in Y’s Education, Health and Care (EHC) plan from February 2018 onwards;
3. Adequately investigate a safeguarding referral she made about the way Y’s school used restraint, and did not keep her updated about the safeguarding investigation.
2. Mrs X says these failures mean Y has missed out on education and other children at his school have also been adversely affected by the Council’s lack of action.

Back to top

What I have investigated

3. I have investigated complaints b) and c). I have not investigated complaint a). This is because the Council decided the school was suitable for Y and named it in his EHC plan. Where the Council considers the school is suitable but the parent refuses to send the child to the school, the Council can consider formal action for non-attendance. In these circumstances, the Council is not required to provide an alternative education. Mrs X had the right to appeal to the Tribunal if she was not satisfied the school was suitable for Y and she did appeal. It was for the Tribunal to decide whether the school was in fact suitable for Y and I cannot consider complaints that are closely linked to a Tribunal appeal.

Back to top

The Ombudsman’s role and powers

4. 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)
5. 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)
6. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
8. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
9. I have exercised discretion to investigate Mrs X’s complaint about a lack of special educational provision for Y from February 2018 onwards because I am satisfied she raised this with the Council and the issue was ongoing when she complained to us in August 2020. I am also satisfied there are sufficient records available to reach robust and defensible conclusions about this.
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 considered:
• The information Mrs X provided and discussed the complaint with her;
• The information provided by the Council in response to my enquiries;
• Relevant law and guidance, as set out below; and
• Our guidance on remedies.
12. Mrs X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

Back to top

What I found

Relevant law and guidance

Education, Health and Care (EHC) plans

13. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan 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.
14. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.

Safeguarding children

15. The law says where a council has reasonable cause to suspect a child is suffering, or is likely to suffer, significant harm it should make enquiries to enable it to decide whether it should take action to protect the child’s welfare. (Children Act 1989, section 47)
16. Councils have a duty to provide advice and guidance to employers and voluntary agencies about handling allegations about staff (including volunteers) who work with children. An allegation may relate to a person who works with children who has:
• behaved in a way that has or may have harmed a child;
• possibly committed a criminal offence against or related to a child; or
• behaved towards a child in a way that indicates they may pose a risk of harm to children.

The Local Authority Designated Officer (LADO) is the designated officer who oversees the investigation of such allegations.

What happened

17. Y started attending school 1 in January 2017.
18. The Council assessed Y’s special educational needs (SEN) and issued a final EHC plan in February 2018. The plan named school 1 and said Y needed:
• To attend a school with a high adult to pupil ratio, with staff who were trained to work with children with developmental trauma;
• An individually designed programme with teaching in small groups and tailored support;
• Support for his sensory needs in line with advice from an occupational therapist;
• Weekly 45 minute Occupational Therapy (OT) sessions either as 1:1, group, indirect, writing programmes and/or training staff to focus on development of gross and fine motor skills, sensory processing and sensory strategies, and functional skills. The programme, which would be devised and overseen by an occupational therapist, would include training to deliver the programme to school staff;
• A table and chair of the correct height, a sloped writing board and a wedged cushion to help him improve his sitting posture, a visual timetable;
• Adult support for the development of communication and social interaction skills, including small group work and access to materials, including Lego therapy.
19. The Council attended an annual review in February 2019. The meeting included discussions about Y’s OT support, which was not being implemented because school 1 was struggling to find an occupational therapist to work with Y. Following the annual review there was a delay in the school sending the Council the relevant paperwork and the records show the Council chased the school for this at least twice, and received it in early April. It then took steps to agree additional funding for OT support with the family’s preferred provider. It confirmed to school 1 that this was in place by mid May 2019 but the provision was not delivered until late June. The Council said that although the full OT support was not in place, school 1 was using OT strategies in the classroom.
20. Following the annual review, the Council agreed to amend Y’s EHC plan. Mrs X asked for further assessments, including an OT assessment and a Speech and Language assessment, which the Council arranged. A final amended EHC plan was issued in August 2019.

SEN support from November 2019 to November 2020

21. Y received SEN support in line with his EHC plan, from September until late November 2019. In relation to OT support, the amended EHC plan said Y should receive, in addition to the support in the earlier plan set out at paragraph 19:
• Participation in an Alert programme to address his sensory processing needs, which comprised weekly OT sessions using strategies that will then be used at school and home; and
• A programme to improve his handwriting developed by an occupational therapist.
22. Mrs X removed Y from school 1 in late November 2019 because she was concerned about its use of restraint. She said she wanted Y to be “educated otherwise than at school (EOTAS)”. This was discussed at the annual review of Y’s plan a few days later and at a Council SEND panel in early December 2019. The Council decided school 1 could meet Y’s needs and was a suitable school for him. Therefore, it did not agree to provide an alternative education.
23. Mrs X was unhappy with the Council’s decision not to amend Y’s EHC plan following the annual review and lodged an appeal with the SEND Tribunal. She specifically asked the Tribunal to consider her proposals for Y to be EOTAS.
24. In late January 2020, Mrs X made a formal complaint. She said the Council had a duty to provide an alternative education and to provide the SEN support set out in Y’s EHC plan. She asked the Council to provide 45 minutes Occupational Therapy (OT) support as set out in Y’s EHC plan and to reimburse her for costs of activities previously provided by school 1, including swimming, Forest school, and community visits.
25. The Council responded in February 2020. It said it remained of the view that school 1 was suitable for Y and could meet his needs. It said he could access his SEN support at school 1.
26. In response to my enquiries, the Council said as the OT support was available through school 1 from November 2019 until early July 2020 it did not consider it was appropriate to provide it at home. It communicated its position to Mrs X on a number of occasions, including in its complaint response in February 2020.
27. In May 2020 the Tribunal heard the appeal. It did not accept Mrs X’s view that Y should be EOTAS. It ordered the Council to name a “special school” in Y’s EHC plan, following school 1’s submission to it that its relationship with Mrs X had broken down.
28. In June 2020 the Council issued a final amended EHC plan. It arranged a package of support for Y whilst it identified a new school, which was likely to take longer than usual as a result of the COVID-19 pandemic. Due to the national lockdown online tuition was offered in June, which Mrs X refused because she did not think this would meet Y’s needs. The Council provided documents to show it was consulting with other schools in June and July 2020 but had not identified a suitable school that had a place available for Y.
29. The Council reconsidered delivering a targeted SEN tuition service in August 2020. It provided a tuition package using Mrs X’s preferred choice of tutor from September 2020. The Council withdrew this in late September due to a concern about the safety of some activities the tutor was providing. In response to my enquiries, the Council provided details of other packages it offered to Mrs X but she refused these for various reasons. It arranged for OT support in line with Y’s EHC plan to be provided by a private provider at Y’s home during the autumn term and held a further annual review meeting in November 2020. I understand it identified a school it considered was suitable for Y, which could offer him a place from January 2021 but Mrs X refused this because she was not satisfied it could meet Y’s needs.

Safeguarding

30. Mrs X made a safeguarding referral in December 2019, after withdrawing Y from school 1 due to safeguarding concerns. The Council said it was referring her concerns about the school to the relevant team. However, it would not take any further action with regards to Y as he was well supported by Mrs X and children’s social care. The records show the Council was satisfied, based on information it already had about the school, that it did not need to take urgent action.
31. In late December, Mrs X sent two further communications to the Council setting out her concerns about school 1 in detail. In early January 2020, the Council said its safeguarding team would assess school 1 but at this point did not agree it was not safe for Y.
32. In late January, the Council’s safeguarding team visited the school. It did not identify any significant concerns but made three recommendations for action by the school.
33. In early February, the Council’s complaints response indicated its safeguarding team would be in touch with Mrs X and would review the safeguarding provision in the school.
34. A few days later, the safeguarding team confirmed it had visited the school and asked it to respond to certain points. It suggested Mrs X make a formal complaint to the school, which she agreed to do. The records show further liaison between the Council and school 1 in February 2020. Also in February, Ofsted carried out an inspection and the records show the safeguarding team considered its report.
35. In late March, in a complaint response, the Council again confirmed its safeguarding team had visited the school and reviewed its procedures. It said it had not identified any significant safeguarding concerns during its visit. It did not agree school 1 was unsafe. It considered school 1 could meet Y’s needs and was suitable school for him.
36. Mrs X complained to us. She said:
• The safeguarding investigation had been concluded without anyone from the team speaking to her or Y;
• She did not consider school 1’s use of restraint with Y was acceptable;
• There was a delay in completing the safeguarding investigation due to COVID-19; and
• The Council had given her inconsistent information about the investigation.
37. In response to my enquiries, the Council provided records to show it had continued to work with school 1 during 2020 but some agreed actions were delayed due to the national lockdown. It said it did not normally share details with parents about its engagement with schools.

My findings

SEN support at school 1

38. The Council issued an EHC plan, which included OT support, in February 2018. I have seen no evidence that either Mrs X or school 1 told the Council the OT support was not being provided before the annual review meeting in February 2019. At that meeting school 1 said it was struggling to find a suitable occupational therapist to provide the OT support. Following the meeting, the Council agreed to fund a private OT service to provide the support and this was in place by late June 2019.
39. I cannot criticise the Council for not ensuring the OT support was in place before February 2019 because it was not aware of the issue. Once it became aware, it took appropriate action to arrange the OT support. There was a short delay in acting between the meeting in February and early April because the Council was waiting for annual review paperwork from the school but it did chase this with the school on at least two occasions so I do not consider this amounts to fault.
40. It is unclear why there was a further delay between mid May (when the Council confirmed the arrangements with the school) and late June (when the first sessions were delivered) but this was not due to fault by the Council. In addition, I note the EHC plan did provide for indirect OT support and this was being delivered in the classroom. The Council was not at fault.

SEN support from November 2019 to November 2020

41. Y received SEN support in line with his EHC plan from September until late November 2019 when Mrs X withdrew him from school 1.
42. From December 2019 until May 2020, the Council considered school 1 was suitable for Y and Y could access the provision in his EHC plan at that school. Mrs X did not agree school 1 was suitable and Y did not attend school in that period. Mrs X said the EHC plan did not state the OT support should be provided in school and asked the Council to provide it at home whilst Y was out of school.
43. I have considered the provision set out in the EHC plan amended in August 2019 and agree that some of the OT support could have been provided outside the school environment. However, I have concluded this is inextricably linked to the question of whether school 1 was suitable, a question that was considered by the SEND Tribunal, and therefore it is not appropriate for me to make a finding.
44. At the Tribunal hearing in May 2020 school 1 said the relationship with Mrs X had broken down and, on that basis, the Tribunal agreed Y should not return there. From this point school 1 was not a suitable school for Y. The Council consulted with other schools and arranged various support packages for Y in the interim. Apart from home tuition with her preferred tutor, which worked for a short time in September 2020, Mrs X refused these offers. Her view remained that Y should be EOTAS but the Tribunal did not agree and the Council was obliged to follow the Tribunal’s order. The Council was not at fault.

Safeguarding

45. When Mrs X made the safeguarding referral the Council immediately said it would not take further action in relation to Y. This was because Y was out of school and it did not have concerns about his safety in Mrs X’s care. However, it said it would refer the concerns about school 1 to its safeguarding team, which it did.
46. Mrs X provided further information about her concerns, which the Council considered, and its safeguarding team visited school 1 in late January 2020. This was appropriate action for the Council to take.
47. In early February 2020, the Council’s safeguarding team updated Mrs X on the action it had taken and suggested she made a formal complaint to school 1, which was the appropriate way for her to address her concerns about the way it was using restraint with Y.
48. It was not a requirement for the Council to discuss the referral with Mrs X or Y if it considered it had sufficient information to investigate her concerns. It was also not a requirement for it to share information about actions it was taking and in most cases the law would prevent it from doing so.
49. In this case, the Council’s complaint response raised Mrs X’s expectations about its safeguarding team consulting with her. Further, its safeguarding team missed the opportunity, when it updated her in February, to explain that it did not need any further information from her or Y and that it would not be updating her further on the actions it was taking. That said, the Council’s communications between December 2019 and May 2020 clearly stated it considered school 1 was safe and suitable for Y. Therefore, I do not consider this warrants a formal finding of fault.

Back to top

Final decision

50. I have completed this investigation. I have not found evidence of fault leading to injustice.

Back to top

Parts of the complaint that I did not investigate

51. I have not investigated complaint a). This is because the Council decided the school was suitable for Y and named it in his EHC plan. It was not required to provide an alternative education because it considered that a suitable school was available to Y. The SEND Tribunal considered whether the school was suitable for Y. I cannot consider complaints that are closely linked to a Tribunal appeal.

Back to top

Investigator's decision on behalf of the Ombudsman