Decision : Closed after initial enquiries
Decision date : 09 Jun 2022
The Ombudsman's final decision:
Summary: We will not investigate Mr X’s complaint about Y’s education. The Tribunal is considering what Y should receive, we cannot investigate a school’s actions and it is not right to investigate separable matters until the Tribunal has ended.
- The complainant, whom I shall call Mr X, says his child has not been provided with a suitable education.
The Ombudsman’s role and powers
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- 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.
- We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
- We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- I considered information provided by Mr X which included the Council’s reply to his complaint.
- I considered the Ombudsman’s Assessment Code.
- Mr X says his child, Y, has struggled to attend school since September 2020. He says Y had shown some issues since 2018. He says from September 2020 onwards Y did not receive an adequate education.
- It seems from the information provided, the School where Y was enrolled, had tried different support schemes and education provision. In July 2021, Mr X says he asked the Council to assess Y for an Education Health and Care Plan (EHC Plan). The Council issued a final EHC Plan in March 2022.
- Mr X says the Council has failed to provide Y with a suitable education since September 2020. He says the EHC Plan does not meet Y’s needs.
- A child with special educational needs may have an 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.
- We cannot investigate Y’s EHC Plan content as the Tribunal is considering this. We also cannot investigate whether the evidence the Council used to draft the EHC Plan was satisfactory. This is because the effect of inadequate evidence is an inadequate EHC Plan which the Tribunal is considering.
- The courts have said that if someone appeals 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 EHC Plan was issued 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).
- We cannot investigate the education provided from the date the EHC Plan was issued until the Tribunal finishes.
- Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
- This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
- Mr X says the Council has failed in this duty. The Council can only fail if it knows the child is out of education. It is not clear if the Council knew before September 2021. We cannot assess the injustice caused to Y and Mr X, from any failing since then, until we know the Tribunal result and the EHC Plan provision.
- For the reasons set out in paragraph two, we cannot investigate the School’s attempts to provided Y with an education in the period before the Council became aware.
- We will not investigate Mr X’s complaint because we cannot investigate the same issues the Tribunal is considering or the School’s actions. It is not right to investigate any delay before the appeal until the Tribunal has ended.
Investigator's decision on behalf of the Ombudsman