Summary: Ms X complained about the Council’s naming of a school on her child’s Education Health and Care Plan and its failure to pay enough towards her child’s school fees. The Ombudsman cannot investigate a complaint about issues Ms X complained about to the SEND Tribunal. The Ombudsman should not investigate other parts of the complaint because it is unlikely an investigation would find fault by the Council or change the outcome for Ms X.

The complaint

1. Ms X complained about the Council’s original decision to name a school on her child, Y’s, Education Health and Care Plan, its failure to pay an adequate contribution towards school fees for Y and its failure to address her concerns through its complaints procedure. She said the Council’s fault caused anxiety for her child and financial problems for her.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended)

3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)) The Ombudsman has no jurisdiction over the tribunal service.

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How I considered this complaint

5. I considered information from Ms X’s complaint, the Council’s complaints procedure and Y’s final Education Health and Care Plan.
6. Ms X had an opportunity to comment on a draft of this decision and I considered her comments before making the final decision.

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What I found

7. Y has special educational needs. 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, including a section naming the school placement for the child. We cannot name a different school or type of provision. Only the SEND Tribunal can do this.
8. Y was due to move to secondary school in September 2018. Ms X and the Council disagreed over which school should be named in the EHC Plan. The Council considered its own school, School F, could meet Y’s needs. Ms X says, at the time Y had to change schools, School F had not assessed Y and there was no evidence it could meet Y’s needs or provide a well-planned transition. She considered a fee-paying independent school, School G, was more appropriate because it had already assessed Y’s needs and was ready to carry out the transition Y needed.
9. In 2018 Ms X appealed to the SEND Tribunal about the school placement. The Tribunal did not make a decision before the school term started in
   September 2018. In September 2018 Ms X sent Y to School G. Ms X still considered it was the only school which had shown it could meet Y’s needs at that stage. She knew there was a free place available at School F.
10. In October 2018 the Council offered to settle the matter before the Tribunal made a final decision by offering to pay the equivalent of the cost of sending Y to
    School F as a contribution towards the larger cost of the fees for School G. Ms X decided to continue with the Tribunal hearing.
11. In November 2018 the Tribunal decided both School F and School G were appropriate schools to meet Y’s educational needs. Ms X accepts that decision but says the Tribunal could not have made it any earlier because there was not enough information about how School F could meet Y’s needs. By then, despite the Tribunal’s decision, Ms X considered it would be detrimental to move Y from School G because Y had settled so well there.
12. The Special Educational Needs and Disability Code of Practice: 0 – 25 years (the Code) is statutory guidance councils must follow. Where a parent makes suitable alternative arrangements for their child, the Code allows a council to make a financial contribution towards the costs of those arrangements. But the Code says the council would be under no obligation to meet the costs of those arrangements.
13. In January 2019 the Council issued a final EHC Plan for Y which took into account the Tribunal’s decision. The EHC Plan did not name a specific placement but named the type of provision as a special school. The Council decided it would contribute towards the fees at School G and now pays half the amount it would have paid for Y to go to School F.
14. Ms X argued the Council should pay more towards School G’s fees. She complained about the issue through the Council’s complaints procedure, also raising issues about how the Council had assessed Y’s educational needs. The Council concluded Ms X chose to place Y at School G and chose to keep Y there after the Tribunal decided School F could both meet Y’s needs and meet the Council’s duty of care to public funds. The Council said it would have met Y’s costs at School F but has no liability to pay for Y at School G. It said, even so, the Council chose to contribute towards the alternative provision Ms X made at School G.

Findings

15. I cannot investigate a complaint about the Council naming School F in Y’s
    EHC Plan because Ms X appealed to the SEND Tribunal about this issue.
16. Where a parent has appealed to the Tribunal, the Ombudsman cannot investigate what happened between the date the appeal right arose until the appeal is completed. So the Council’s actions during that period are outside the Ombudsman’s jurisdiction.
17. The Council has explained to Ms X how it made its decision to contribute towards the fees for School G in line with statutory guidance. It is unlikely we would find fault with the Council’s decision.
18. The main issues covered during the Council’s complaints procedure were how the Council assessed Y’s needs, the consequent suitability of Schools F and G and the Council’s funding decision. It is unlikely further investigation would change the outcome on these issues. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issues.

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Final decision

19. The Ombudsman cannot investigate the part of this complaint which is outside his jurisdiction. The Ombudsman should not investigate the other parts because it is unlikely an investigation would find fault by the Council or change the outcome for Ms X.

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Investigator's decision on behalf of the Ombudsman