Summary: the Ombudsman cannot investigate Ms P’s complaints about the lack of education for B or the Council’s failure to identify a suitable special school for him because Ms P has appealed to the First Tier Tribunal. The Council has apologised for the uncertainty caused and the problems Ms P experienced dealing with the Special Educational Needs Service. This is a satisfactory remedy.

The complaint

1. Ms P complains the Council has not secured a secondary school place for her son, B.
2. B should have started secondary school in September 2022. The Council amended his EHC Plan in February 2022 to specify a type of school (a special school), but it has not secured a school place for him.
3. Ms P complains the uncertainty about B’s education has caused him considerable anxiety which has led to a deterioration in his behaviour. She says this has had a knock-on effect on the whole family.
4. Ms P complains about the lack of provision for B until a suitable school place is found.
5. Ms P complains the Council failed to meet deadlines and keep promises to update her on progress during its search for a school place.

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The Ombudsman’s role and powers

6. 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)
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. 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)

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How I considered this complaint

10. I have considered:
• information provided by Ms P;
• information provided by the Council.
11. I invited Ms P and the Council to comment on my draft decision.

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What I found

12. Ms P’s son, B has an Education, Health and Care (EHC) Plan maintained by the Council.
13. He attended a primary special school and should have started secondary school in September 2022.
14. The Council reviewed B’s EHC Plan and issued a final amended Plan on 14 February 2022. The Plan said B would continue to attend the primary special school until the end of term in July, and then he would attend the nearest state-funded special school for children with communication and interaction needs. His Plan did not specify which school, it simply said the school was “to be identified”.
15. Ms P says the Council promised to identify a suitable secondary school by March, although it later put the date back to the end of May 2022. When the Council had not identified a suitable school by the end of May, Ms P says B’s primary school suggested an emergency review to trigger Ms P’s right of appeal to the Tribunal.
16. Following the review, Ms P appealed to the Tribunal. She appealed the fact the Council has not named a school in B’s EHC Plan.
17. Ms P complained to the Council about the lack of a school for B and the impact of the delays finding a place. The Council made a referral to Access 2 Education, its flexible, short-term education service for pupils who do not attend school.
18. Unhappy with the Council’s response, Ms P complained to the Ombudsman.

Consideration

The Council’s failure to find a school place for B

19. The Council decided B needed a special school place to start his secondary education in September 2022. The Council was unable to identify a suitable school place in time for the beginning of term. At the time of writing, the Council has still not secured a school place for B. Something has clearly gone wrong.
20. The Council was unable to name a school when it issued B’s EHC Plan in February 2022. Instead, it specified a type of school. This was not ideal, but it is a step the Council is entitled to take. Ms P had a right of appeal to the Tribunal at the time. The Tribunal prioritises appeals from children moving to secondary school (‘phase transfer’) and would have tried to hear Ms P’s appeal before the start of term in September. Understandably, Ms P did not appeal as she did not have a particular school in mind at the time, and in any case, the Council said it would find a place for B.
21. The Council’s subsequent attempts to find a suitable school for B were unsuccessful. All the schools the Council consulted said they were unable to meet his needs.
22. Following the emergency review of B’s EHC Plan in July 2022, Ms P appealed to the Tribunal. She appealed the fact the Council has not named a school in B’s EHC Plan.
23. Now that Ms P has lodged her appeal, the law prevents me from investigating her complaint about the lack of a school place for B. The Ombudsman cannot investigate complaints about matters that are the subject of an appeal to the Tribunal.
24. I appreciate the uncertainty surrounding plans for his transition to secondary school will have been particularly difficult for B. I do not underestimate the impact this will have had on the whole family. However, as I cannot investigate the lack of a school place, I cannot comment further.

Lack of provision until a school place is found

25. When Ms P first complained, the Council had not made any alternative arrangements for B’s education until a school place could be found.
26. The Council subsequently made a referral to a flexible, short-term service for children unable to attend school.
27. I cannot investigate Ms P’s complaint about the alternative education the Council has provided until a place is found, since this is a consequence of the Council’s decision not to name a school which she has appealed to the Tribunal.

The Council’s failure to meet deadlines and keep Ms P informed

28. Ms P complains the Council failed to meet deadlines and keep promises to update her on progress during its search for a school place.
29. The Council sent me the ‘complaint file’ which contains copies of its correspondence with Ms P following her formal complaint.
30. It is clear from the correspondence that Ms P was doing all she could to secure a school place for B for the beginning of term.
31. The Complaints Team quickly identified that the Council’s search for a school place was ongoing and asked the Special Educational Needs service to respond.
32. Ms P also said she wanted a formal response under the Council’s complaints process.
33. The Ombudsman has published guidance on complaint handling. We advise councils to distinguish between ‘service requests’ and ‘complaints’. Ms P wanted a school place. She was unhappy with the lack of progress.
34. Following Ms P’s complaint, the Special Educational Needs Service agreed in June 2022 to contact Ms P fortnightly to update her on progress.
35. Ms P complained again at the end of August that she had not received any updates from the Council. The Council replied the same day to explain that it did not have any information to update Ms P: it had consulted a newly opened school, but the school said it could not meet B’s needs; the Council had issued a final plan so Ms P could appeal to the Tribunal; and alternative education would be arranged for September.
36. The Special Educational Needs Service wrote a response to Ms P’s complaint on 30 August, but there was a delay sending this to Ms P.
37. I can see that it has been an incredibly frustrating process for all concerned trying to secure a school place for B. I do not underestimate the stress this caused Ms P.
38. In its final response, a letter of 9 September from a manager in the Special Educational Needs Service, the Council apologised for the uncertainty caused by the lack of a school place for B. The Council also apologised that Ms P’s experience and interaction with the service had not been as it would wish it to be.

Conclusions

39. Ms P complained to the Ombudsman because she wanted to do everything she could to secure suitable education and a school place for B. Regrettably, I am unable to help. These matters are outside our jurisdiction since Ms P has appealed to the Tribunal.
40. I consider the Council’s apology for the uncertainty and the problems Ms P experienced dealing with the Special Educational Needs Service to be a satisfactory remedy for the period to 9 September when Ms P complained to the Ombudsman.
41. Ms P told me of her continuing dissatisfaction with a lack of communication from the Council as the search for a suitable school for B continues. In particular, Ms P says B was invited for a taster session at a school having already identified a school he likes. She does not consider this appropriate. The scope for my involvement is limited by the Tribunal appeal, but I would nevertheless want to emphasise the importance of regular communication with Ms P to which the Council previously committed.

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Final decision

42. I have completed my investigation for the reasons given above.

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Investigator's decision on behalf of the Ombudsman