Summary: Ms X complains that the Council failed to make the provision set out in her son’s education, health and care plan. We found find no fault on the Council’s part. Ms X also complains about other matters which we have not investigated as they are inextricably linked with matters considered by the Tribunal so are outside our jurisdiction. Ms X also complained about discrimination by her son’s school. We have not investigated this complaint because the law says we cannot investigate a school’s actions.

The complaint

1. Ms X complains that the Council:
• failed to make the provision set out in her son’s education, health and care plan (EHCP);
• tried to place her son in alternative provision instead of a school;
• failed to consider her views about a suitable placement;
• submitted incorrect information to the Tribunal and failed to inform the Tribunal that her son has a wheelchair in school so the school could meet his needs; and
• failed to properly consider her complaint.
2. Ms X also complains about discrimination by her son’s school.

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What I have investigated

3. I have considered Ms X’s complaints that the Council failed to make the provision set out in her son’s EHCP and that it failed to properly consider her complaint. My reasons for not investigating the remainder of her complaints are set out at the end of this statement.

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The Ombudsman’s role and powers

4. 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)
5. If we are satisfied with an organisation’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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
8. 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.
9. 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 engaged 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).
10. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5 (b), as amended)

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How I considered this complaint

11. I have considered all the information provided by Ms X together with that provided by the Council.
12. Ms 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

Legal and administrative background

Education, health and care plans

13. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s special educational needs (SEN) and the provision required to meet them. We cannot direct changes to the sections about education, on a different school. Only the Tribunal can do this.
14. The Council is responsible for making sure that arrangements specified in the EHCP are put in place and reviewed each year. We cannot look at complaints about what is in the EHCP but can look at other matters, such as where support set out in an EHCP has not been provided or where there have been delays in the process.
15. There is a right of appeal to the Special Educational Needs and Disability Tribunal (SEND Tribunal) against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. An appeal right is engaged once a decision not to assess, issue or amend the plan has been made and sent to the parent or a final EHCP has been issued.

Key facts

16. Ms X’s son, C, has autism which impacts on all aspects of his learning, social interaction and communication. He also has attention deficit hyperactivity disorder (ADHD) and behaviour related issues because of his special educational needs.
17. C has an EHCP and attends a special school (‘the School’). He has high levels of support at school and the school receives additional funding to help with this.
18. In March 2021 there was an annual review of C’s EHCP. It was agreed the school could continue to meet C’s needs with additional funding. Funding was agreed by the Validation Panel in April 2021.
19. On 8 June 2021 the school informed the Council that it could no longer meet C’s needs because of changes and developments in his condition. It considered there were health and safety issues due to lack of space, so the environment was no longer suitable for C.
20. On 29 June 2021 the Council issued a final EHCP. This did not name the school in Section I because the Council accepted it could no longer meet C’s needs. Instead, it specified “specialist provision”. Ms X considered the school could meet her son’s needs and wanted him to remain there. She appealed to the SEND Tribunal against the placement set out in Section I.
21. Meantime, C remained at the school and the Council sent out consultations to several other schools to try to find a suitable alternative placement for him. None of them were able to offer C a place.
22. On 14 January 2022 the Tribunal dismissed Ms X’s appeal. However, it decided the EHCP should specify “a special school” rather than “specialist provision”. It found that, because of the environmental constraints of the school, it could no longer meet C’s special needs for sensory, diet and movement breaks or manage transitions effectively. It decided he would benefit from an environment where he could have more space and easy access to outdoor space as well as facilities to socialise with other pupils of his age and ability.
23. Following the Tribunal’s decision, the Council re-issued the final EHCP specifying “a special school”.
24. Ms B was not happy with the Tribunal’s decision and appealed to the Upper Tribunal.
25. In March 2022 the Council sent consultations to several other schools.
26. In July 2022 the Council confirmed none of the placements it had consulted could meet C’s needs. It said it would send further consultations in September 2022. In the meantime, it would continue working closely with the school to help it meet C’s needs. It requested additional funds to assist the school in supporting C. This request was agreed by the Panel.

Analysis

Failure to make provision set out in the EHCP

27. I am satisfied the Council has continued to make the provision set out in C’s EHCP. Although the school is struggling to cope with his needs, it is currently doing so and the Council has put in place additional funding to help with this. The Council is happy for C to remain at the school with the additional funding until it can find a suitable alternative placement for him.
28. The Tribunal decided the school could not meet C’s needs only because of the physical environment (not enough space), not because of the education it was providing. So, C has not lost out on provision.
29. I am also satisfied the Council has made extensive attempts to find a suitable alternative school that is able to meet C’s needs. It began taking proactive steps in this regard immediately after the school notified it that it could no longer meet C’s needs in June 2021.

The Council’s response to Ms X’s complaint

30. Ms X complained to the Council on 21 June 2021. A complaints officer from the Children and Young People’s Service (CYPS) responded at stage 1 on 13 July 2021.
31. Ms X replied saying the response had not addressed the issues she raised. The officer accepted this and responded to the outstanding issues.
32. Ms X requested that her complaint be escalated to stage 2 of the Council’s complaints procedure. On 17 August 2021 a customer feedback investigation officer wrote to Ms X setting out her understanding of the reasons she wanted to escalate her complaint. The officer explained there would be a delay in responding because key officers were on leave.
33. On 28 September 2021 the officer wrote to Ms X again saying she intended to close the escalation request as she did not consider it appropriate for the customer feedback team to be involved at this stage. This was partly because Ms X was still in discussions with officers and the school about the issues raised and because Ms X had appealed to the Tribunal in relation to the school place. I find no grounds to criticise this decision.
34. On 18 March 2022 Ms X wrote to the corporate director of the CYPS. She said the reasons given by the school for not being able to meet C’s needs were untrue and she felt the school was discriminating against him.
35. The corporate director explained the Tribunal’s decision. He said the Council wanted to find a more suitable school for C but, until then, it wanted C to remain at his current school.
36. Ms X responded saying she was dissatisfied with the response. Her response was passed to the SEND strategic manager who contacted Ms X. She wrote to the Council saying it was inappropriate for the SEND strategic manager to contact her about her complaint as it concerned decisions made by him and his team. So, the CYPS complaints manager responded to the issues raised. She explained that Ms X’s concerns were heavily linked with the decision about C’s school place which had been the subject of a SEND Tribunal decision. Accordingly, she could not pursue these issues via the Council’s complaints procedure. However, it was open to her to pursue the matter further through the Tribunal process. There are no grounds to criticise this decision.
37. I find no grounds to criticise the Council’s responses to Ms X’s complaints. I am satisfied they adequately addressed her points of complaint and referred her to the Tribunal where appropriate. The Council also correctly referred Ms X to the Ombudsman.

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Final decision

38. I do not uphold Ms B’s complaint.
39. I have completed my investigation on the basis that I am satisfied with the Council’s actions.

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Parts of the complaint that I did not investigate

40. I have not investigated Ms X’s complaint that the Council tried to place her son in alternative provision instead of a school because no injustice was caused by this. The Council suggested this option, but C remained at his current school.
41. Ms X has exercised her right of appeal to the SEND Tribunal about the provision named in her son’s EHCP. I have not investigated the remainder of Ms X’s complaints against the Council because they are inextricably linked with the matter considered by the Tribunal. The fact that Ms X has used her right to appeal places all matters relating to the decision subject to appeal outside our jurisdiction.
42. I have not investigated Ms X’s complaints against her son’s school because the law says we cannot investigate a school’s actions.

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Investigator's decision on behalf of the Ombudsman