The Ombudsman's final decision:
Summary: Ms X complains the Council was at fault in the way it dealt with her son’s special educational needs, an Education Health and Care Plan (EHCP) and progressed a SEND tribunal decision. We found no evidence of fault in the way the Council progressed the Tribunal decision. Ms X has appealed to the SEND Tribunal again and so the law prevents us from considering Ms X’s concerns about the EHCP. So, we have completed our investigation.
- I have called the complainant Ms X. She complains about the way the Council dealt with her son Y’s special educational needs and recent Education Health and Care Plan (EHCP). Ms X complains:
- The Council failed to progress a SEND tribunal ruling from March 2021 to help her identify a school placement for Y. Ms X says the Council harassed her for names of schools she wished to consider.
- The Council continues to insist Y attends a school who say they cannot meet his needs. Ms X considers the placement will be detrimental to his education and well-being.
- The Council refused Ms Y’s request for a package of Education Other Than at School (EOTAS) and a personal budget for Y.
- The Council withheld a school’s consultation response from its Chair of Governors about a placement. This meant Ms X missed the deadline to appeal and was late in appealing to the SEND tribunal about the Council’s decision to name the school.
- There was no transition timetable in place for Y to transfer to the school named in his EHCP.
- Y has missed much schooling over the years as his previous schools have been unable to meet his needs.
What I have investigated
- I have investigated Ms X concerns about the Council’s actions following the SEND Tribunal decision in March 2021 and withholding a consultation response. I have explained within the text of the statement my reasons for not investigating Ms X’s concerns about Y’s previous education received, the school he attends and the transition timetable. I am also not investigating Ms X’s wish for Y to receive EOTAS.
The Ombudsman’s role and powers
- 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)
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
- We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)). Where the Tribunal orders a council to amend an EHC Plan, the council shall amend the EHC plan within five weeks of the order being made. ( The Special Educational Needs and Disability Regulations 2014)
- 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)
How I considered this complaint
- I have read the papers submitted by Ms X and discussed the complaint with her. I considered the Council’s comments on the complaint and the supporting documents it provided. I considered relevant law and guidance on special educational needs.
- Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- A child with special educational needs (SEN) may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the SEND Tribunal can do this.
- Parents have a right to appeal to the SEND Tribunal if a council refuses to carry out an assessment, or they disagree with the special education provision, or the school named in the child’s EHCP.
- 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)  EWCA Civ 1407).
Elective Home education (EHE)
- Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
Background to the complaint
- Y has a diagnosis of ASD and ADHD. He started attending a mainstream primary school in September 2018. The Council issued an EHCP for Y in December 2019 with his placement remaining at the school with a package of support. Ms X removed Y from the school in July 2020 and educated him at home.
- The Council carried out an annual review of Y’s EHCP in July 2020. Ms X asked for Y to attend a specialist community school I will refer to as school A. The Council refused the request and amended the final EHCP with Y to remain at a mainstream setting. Ms Y appealed to the SEND Tribunal about the final plan as she did not agree with a mainstream setting for Y.
- The Council recorded Y as being Electively Home Educated (EHE) by Ms X from September 2020. As Y was EHE there was no requirement for the Council to offer any alternative provision.
- The Council consulted with two schools in December 2020 for a placement for Y. I will refer to the schools as school B and school C. The schools said they could not meet Y’s needs so did not offer a place.
- The SEND tribunal hearing took place on 5 March 2021. During the hearing the Council identified a placement at a school I will refer to as school D. The Tribunal decided on 24 March 2021 schools A and D were not suitable for Y. It ordered the Council to amend sections of the EHCP and to add ‘ a mainstream primary school’ as the setting for Y. The Tribunal told the Council to engage with Ms X and help her to identify potential appropriate placements for Y. The Council had five weeks from the date of the Tribunal decision to amend the EHCP according to the ruling.
Events after the March 2021 SEND Tribunal
- An officer contacted Ms X on 29 March 2021 to ask if she had ‘any thoughts on the primary schools you would like the LA to consult with for Y?’. The officer suggested schools B and C being the closest to Ms X’s home and suggested Ms X called them to organise a visit. The officer offered to hold a meeting with Ms X or telephone her to discuss the consultation further if she wished.
- The officer contacted Ms X on 8 April 2021 as Ms X did not respond to her previous contact. Ms X said she would start consulting with school C shortly and get back to the officer with a consultation list. The officer spoke to Ms X on 15 and 16 April 2021. Ms X said she had consulted with schools B and C. The officer carried out formal consultation with the schools and shared the responses received with Ms X.
- School C responded it was unsuitable to Y’s educational needs. School B did not provide a formal response. But the headteacher emailed and told the officer the school had reservations about its capacity to accept a further pupil. The Council did not consider this a legal reason not to accept Y if the school had been identified as parental preference.
- The Council ordered school B to offer a placement to Y. The Council issued an amended final ECHP for Y on 14 May 2021 naming school B as Y’s mainstream placement. The Council told Ms X of its decision and her right of appeal to the SEND tribunal if she did not agree.
Ms X’s complaints to the Council
- Ms X complained to the Council in July 2020 it had not worked with or supported her to secure an appropriate placement for Y. Ms X said school B was not suitable for his needs and the Council failed to send her the consultation response dated January 2021 from the school’s Chair of Governors. Ms X asked why the Council failed to provide Y with the package of EOTAS she wanted. Ms X noted school A responded it was full so questioned why the Council did not direct it to take Y like it had with school B.
- The Council responded to Ms X’s complaints. It explained the Tribunal decided Y should attend a mainstream school. As such the Council must adhere to the ruling So, it would not ask school A as a specialist school to offer Y a placement.
- The Council confirmed officers contacted Ms X after the Tribunal decision to offer support and advice on possible school placements. The officers then consulted the schools Ms X mentioned and shared the responses with her. The school response Ms X asked for was the one sent before the tribunal hearing and decision. It had not been provided as it did not relate to the latest consultation carried out and did not reflect the school’s ability to meet Y’s current identified needs and provisions. The Council confirmed Ms X had already been sent the most recent consultation response from school B.
- The Council confirmed it did not consider school B’s reason about it being at capacity as a legal reason not to accept Y. It identified school B as a suitable placement so did not agree to Y being provided with EOTAS status. And the Tribunal did not identify Y as needing this type of education. The Council said as the named placement school B had a duty to meet his needs outlined in the EHCP.
- The Council acknowledged it would be helpful if Y had a carefully managed transition to school B with all provision in the EHCP put in place. Y’s caseworker would continue to support him while he settled into the school. The Council confirmed the transition would be carefully monitored and reviewed in the Autumn 2021 half term. The Council did not uphold Ms X’s complaint.
Ms X’s appeal to SEND July 2021
- Ms X submitted a late appeal to the SEND Tribunal on 29 July 2021 against the Amended Final Plan issued by the Council in May 2021. Ms X considered school B unsuitable for Y’s needs, it had clearly said it could not meet his needs so was detrimental to Y’s education and well-being. Ms X requested an EOTAS package. Ms X said the appeal was late because the Council had not provided her with the school’s consultation response from January 2021.
- The SEND Tribunal confirmed a hearing date of 17 January 2022. But following a case management review in early January 2022 the Tribunal ordered both parties to submit further evidence by 14 February 2022 with a hearing date to be set.
- Y started at school B in October 2021. The Council consulted with a school with a SEN resource unit who confirmed they could meet Y’s needs and offer a place straightaway. Ms X refused the offer as Y was starting the transition to school B on a reduced timetable and doing well. In December 2021 school B reported Y had a 1 to 1 assistant and integration had been positive with plans to increase his time at school.
- Ms X reports that Y was excluded from school in February 2022 and his hours at school reduced.
- Ms X complains Y missed much education over the years as schools have been unable to meet his needs. The education Ms X refers to was provided from 2018 to July 2020. Ms X then removed Y from school and sought to EHE him. I consider this part of Ms X’s complaint to us is late and I do not consider there are good reasons for us to investigate now. This is because I would have expected Ms X to have complained to us before now if she considered he was not receiving an education from 2018 to 2020.
- The documents provided show the Council contacted Ms X soon after the Tribunal decision in March 2021 and gave her advice and support about consultation with schools. The Council has five weeks after the Tribunal decision to carry it out and amend the EHCP. The timescale is set by the Regulations so the Council does need to progress matters as quickly as it can. While Ms X may be concerned by the Council’s contact, I do not see any evidence the Council ‘harassed’ Ms X about the matter. The Council was carrying out the Tribunal ruling and needed responses from Ms X. Once Ms X spoke to the schools B and C the Council carried out consultation and amended Y’s EHCP.
- The Council took just over the five weeks to amend the EHCP which is beyond the requirements of the regulations. But I consider this was due to waiting for Ms X to respond to its contact and speak to the schools, rather than through any fault on its part.
- Ms X continues to raise concerns about Y attending school B and whether it can meet his needs. Ms X also requests an EOTAS package for Y. This forms part of Ms X’s appeal to the SEND tribunal and so it is not a matter we can consider.
- I am unclear why Ms X felt she could not appeal without seeing the school B’s consultation response from January 2021. The Council explained why it did not provide a copy as it related to consultation carried out before the March 2021 Tribunal ruling. So, it was not the latest consultation response. The Council provided Ms X with the most recent response. In any event Ms X has made a late appeal to the Tribunal, and it has been accepted. Because of this I do not consider there are grounds for me to pursue Ms X’s concerns on this point any further.
- Ms X raised concerns there was no transition timetable in place for Y to start at school B. This refers to ongoing educational provision taking place during Ms X’s current appeal. And so is not an issue we can consider. However, the Council has provided information from school B referring the transition arrangements in place and reported they are going well. It is unfortunate if the situation has now changed. As this is a recent event Ms X will need to complain to the Council about the matter so it can investigate and respond to any concerns she may have.
- I am completing my investigation. I have found no evidence of fault by the Council in the way it progressed a ruling by the SEND Tribunal. Ms X has appealed to the SEND Tribunal again and so the law prevents us from considering Ms X’s concerns about the EHCP.
Investigator's decision on behalf of the Ombudsman