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London Borough of Richmond upon Thames (21 002 685)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 14 Dec 2021

The Ombudsman's final decision:

Summary: the Council has offered an appropriate remedy for the occupational therapy and specialist dyslexia support Ms M’s son, B, missed. Ms M remains unhappy with the school named in B’s Education, Health and Care (EHC) Plan following the most recent tribunal. The Ombudsman cannot consider matters decided by the tribunal.

The complaint

  1. Ms M complained about her son B’s education. B has an Education, Health and Care (EHC) Plan maintained by the Council. In particular, Ms M complained:
      1. B did not receive the provision specified in his Plan between May 2019 and July 2020; and
      2. the Council has not identified a suitable school for B.
  2. Ms M says B is out of school. She is struggling to cope with his behaviour.

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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 First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
  3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  4. 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)

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How I considered this complaint

  1. I have considered:
    • information provided by Ms M; and
    • information provided by the Council.
  2. I invited Ms M and the Council to comment on my draft decision.

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What I found

  1. The Council issued an EHC Plan for Ms M’s son, B, in May 2019. The Plan said B would attend a mainstream school. He started at a mainstream secondary school in September 2019.
  2. Ms M wanted B to attend a special school and appealed to the Tribunal. At a hearing in December 2019, the Tribunal decided B should attend a mainstream secondary school. The Council issued an amended EHC Plan in January 2020. B remained on roll at the mainstream secondary school. The plan was to arrange small-group teaching for B at the school.
  3. Ms M removed B from the school in February 2020. She did not consider the school could meet B’s needs. Her solicitor threatened the Council with Judicial Review.
  4. The school sent work home for B, but the Council says he did not complete it. When schools closed because of the pandemic, the Council says the school offered B online learning or access to small classes at the school, but he did not participate.
  5. Ms M reported she was finding it difficult to manage B at home. The Council held an emergency review of B’s EHC Plan in May 2020. Following the review, the Council offered B a place at a special school.
  6. Ms M wanted a different school and appealed to the Tribunal. Her appeal was unsuccessful. At a hearing in May 2021, the Tribunal agreed with the Council’s proposals for B’s education.
  7. Ms M remains dissatisfied and complained to the Ombudsman. She is unhappy with the outcome of her appeal. She does not consider the provision agreed by the Tribunal meets B’s needs.
  8. Since Ms M complained to the Ombudsman, the Council held a further annual review of B’s EHC Plan. Ms M did not agree with the Council’s proposals for B’s education and has appealed once again to the Tribunal.

Ms M’s complaint to the Council

  1. Ms M’s solicitor complained to the Council in July 2020 that B had not received the provision in his Plan between May 2019 and July 2020, and the Council had not identified a suitable school following the December 2019 Tribunal decision.
  2. The Council responded at both stages of its complaints process. The Council acknowledged B had missed five sessions of occupational therapy and twice-weekly specialist dyslexia teaching for 24 weeks. The Council apologised and offered a payment of £2,800. The Council said there had always been a school place available for B, but there had been times when Ms M had chosen not to send him to school. The Council said it was working with the school to arrange small group teaching, and the school had offered B access to small classes during the pandemic, but Ms M had declined. At the time of the Council’s response the complaint, the question of a suitable school was once again to be decided by the Tribunal.

Education, Health and Care Plans: the law

  1. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
  2. The procedure for assessing a child’s special educational needs and issuing an Education, Health and Care Plan is set out in legislation and Government guidance.
  3. Once the Council has issued a Plan, it must secure the special educational provision specified in the Plan for the child or young person. (Children and Families Act 2014, section 42)

Education, Health and Care Plans: the Ombudsman and the Tribunal

  1. The Ombudsman’s role is to check the Council followed the relevant law, regulations and guidance when considering requests for, and issuing, Plans. We can also check the Council arranged for provision to be made once a plan is issued. We cannot make decisions about a child’s special educational needs or the school they should attend.
  2. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s Education, Health and Care Plan.
  3. The Tribunal considers the child’s needs afresh. It does not consider the process the Council followed in reaching the decision.
  4. We cannot investigate a complaint about a matter someone has appealed to the Tribunal. This means we cannot consider whether there was fault or recommend a remedy for any injustice it may have caused between the appeal right arising and the Tribunal’s decision. (R v the Commissioner for Local Administration ex parte PH, 1999)
  5. We cannot investigate complaints about matters ‘inextricably linked’ to the appeal. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
  6. There is an ‘inextricable link’ when the complaint and the appeal boil down to the same thing. For example, where a child does not attend the school named in their Plan and the parent appeals to the Tribunal for a more suitable school, we cannot investigate a complaint about the education the child misses.
  7. This may be the case when a child is too anxious to attend the mainstream school specified in their Plan, and the parent appeals for a smaller, or special school.
  8. We may investigate the complaint if the reason the child does not attend the school has no connection with the appeal. This may be the case if the child was ill and unable to attend any school, for example.

Consideration

  1. B has been out of school for some time. Ms M and the Council have been unable to agree the school he should attend. Ms M twice appealed against the Council’s plans for B’s education. Her appeals were unsuccessful. The Tribunal decided B should attend the special school proposed by the Council. Ms M is unhappy with the outcome and has lodged a further appeal following the latest annual review of B’s EHC Plan.
  2. The Ombudsman does not decide which school B should attend. We cannot consider complaints about matters that have been decided by the Tribunal. We cannot consider complaints about the education B has missed while the Tribunal considered Ms M’s appeals.
  3. I have considered the Council’s response to the complaint made by Ms M’s solicitor in July 2020. The solicitor complained the Council had not arranged the special educational provision in B’s Plan between May 2019 and July 2020.
  4. The Council accepted it had not arranged all the provision in B’s Plan. The Council acknowledged B had missed five sessions of occupational therapy and twice-weekly specialist dyslexia teaching for 24 weeks. The Council apologised and offered a payment of £2,800.
  5. I consider this a suitable remedy for Ms M’s complaint.
  6. The solicitor also complained the Council had not identified a suitable school for B following the Tribunal hearing in December 2019.
  7. The Council outlined the steps it had taken, and explained that Ms M had decided to withdraw B from the school and not take advantage of the small group teaching offered during the pandemic.
  8. I do not consider there was fault by the Council. In any case, I cannot consider matters once Ms M appealed to the Tribunal.

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Agreed action

  1. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Ms M and B, we may recommend the Council makes a symbolic payment.
  2. The Council has offered a payment of £2,800 to recognise the occupational therapy and specialist dyslexia teaching B missed, and Ms M’s time and trouble pursuing her complaint. I consider this a suitable remedy.

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Final decision

  1. I have completed my investigation. Ms M’s son, B, missed occupational therapy and specialist dyslexia support as a result of fault by the Council, and the Council has offered an appropriate remedy. Ms M remains unhappy with the school named in B’s Education, Health and Care (EHC) Plan. She has appealed to the tribunal. The Ombudsman cannot consider matters decided by the Tribunal.

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Investigator's decision on behalf of the Ombudsman

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