Summary: Mrs X complains the Council has not provided Special Educational Needs (SEN) provision for her son. The Council is not at fault.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council has not provided SEN provision for her son Y since July 2019, comprising:
• Speech and Language therapy sessions;
• Occupational therapy sessions;
• Physiotherapy sessions; and
• Provision of a bespoke helmet.
2. Mrs X says Y has missed education and SEN provision and has been restricted from activities.

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The Ombudsman’s role and powers

3. 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

4. I spoke to Mrs X about her complaint and considered documents provided by Mrs X. I made enquiries of the Council and considered its response and the supporting documents it provided.
5. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Special Educational Needs

6. A child with special educational needs 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 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.
7. 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.
8. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
9. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act).
10. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal was submitted if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

What happened?

11. The Council issued Y’s EHCP in July 2019, naming School A as his placement. Mrs X was unhappy about both the SEN provision and Y’s education placement because she wanted him to attend School B.
12. Mrs X appealed to the SEND Tribunal. The Tribunal made some changes to Y’s SEN provision but decided that School A was an appropriate placement. Mrs X decided not to send Y to School A.
13. In February 2021, the Council reviewed Y’s EHCP and again named School A as Y’s placement. Mrs X remained unhappy about this and appealed to the SEND Tribunal again. Mrs X still did not send Y to School A.
14. The Tribunal decided that Y should attend school C.

Analysis

SEN provision

15. Y has not attended the named placement in his EHCP. This was the decision of Mrs X, not the Council.
16. Case notes show Mrs X confirmed receiving Y’s helmet in April 2020 and the fitting has been reviewed regularly since then.
17. Case notes also show that despite not attending his educational placement, the Council have made a number of home visits and developed a multi-disciplinary therapy programme during 2020.
18. Mrs X confirmed to me that several therapy sessions have been delivered from March 2021.
19. The Council has made appropriate provision available for Y. This is not fault by the Council.

Alternative Education provision

20. Y was of statutory school age from September 2021. Mrs X appealed to SEND Tribunal the second time prior to this date. The issue of provision of alternative education while Y did not attend School A from September 2021 cannot be considered by the Ombudsman, for the reason set out in paragraph 10 above.

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Final decision

21. I have not found fault by the Council. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman