Summary: Ms P’s son, B, has missed a considerable amount of education following Ms P’s temporary move to Kent, but this was not the result of fault by the Council.

The complaint

1. Ms P complains about her son B’s education. In particular, she complains:
1. the Council named an independent special school in his Education, Health and Care (EHC) Plan even though he said he would not attend;
2. B has not attended school since December 2021 and has been without suitable education;
3. the Council has transferred B’s EHC Plan to Kent County Council and says it is no longer responsible for his education; and
4. the school has now given notice on the placement.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
4. 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.

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How I considered this complaint

5. I have considered information provided by Ms P and information provided by the Council. I invited Ms P and the Council to comment on my draft decision.

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What I found

6. Ms P’s son, B, has an Education, Health and Care (EHC) Plan.
7. In January 2022, the London Borough of Merton (‘the Council’) arranged a place for B at an independent special school. The school caters for children with a range of needs, including social, emotional and mental health (SEMH) needs, speech, language and communication difficulties, and autism.
8. The Council issued an amended final EHC Plan on 15 March 2022. The Plan names the school in Section I. The Council sent a copy of the plan to Ms P and explained she had a right of appeal to the SEND Tribunal about anything she disagreed with in the plan.
9. Ms P complained to the Council on 19 June 2022.
10. She said she was unhappy the Council had named the independent special school in B’s EHC Plan. She regretted the Council’s decision to end the alternative provision B had attended before he enrolled at the special school. She said B would not attend the special school, and the school had failed to send work home for B or provide him with mobile data to enable him to use his laptop.
11. The Council responded on 25 July 2022.
12. The Council did not uphold Ms P’s complaint. It explained why it had named the independent special school in B’s EHC Plan and ended the alternative provision. It said Ms P should raise her concerns about B’s education directly with the school. The Council also said it had transferred B’s EHC Plan to Kent County Council since Ms P had moved to Kent in March 2022.
13. Unhappy with the response, Ms P asked the Council to respond at the second stage of the Council’s complaints process. She said she believed it was the Council’s responsibility to ensure the school provided education for B and support for his special educational needs. She said she wanted tutors to provide education for him. Although she was staying in Kent, she said she did not have an address in Kent and believed Merton remained responsible for his education.
14. The Council sent its final response on 21 September 2022.
15. The Council did not uphold Ms P’s complaint. The Council explained it had provided tutors in the past, but a place had been available for B at a special school since January 2022 instead. The Council confirmed it was responsible for securing the special educational provision in B’s EHC Plan and explained it would monitor this at the annual review. The Council said other aspects of B’s education were the school’s responsibility. The Council explained it was Ms P’s responsibility to ensure B attended school. The Council said Ms P had provided an address in Kent at a child in need meeting on 16 June 2022, following which the Council had transferred B’s EHC Plan to Kent County Council. The Council understood Ms P moved to Kent in March 2022.
16. Unhappy with the Council’s response, and B’s continuing absence from education, Ms P complained to the Ombudsman. She said she believed Merton was responsible and did not want to complain about Kent County Council.
17. Ms P told us she was living in Kent temporarily because of a dispute with a neighbour at her home in Merton. She said she was moving backwards and forwards between Merton and Kent, but intended to return to Merton once she had resolved her neighbour dispute.

Consideration

The decision to name an independent special school in B’s EHC Plan

18. Ms P complains about the Council’s decision to end alternative provision, which she says B enjoyed, and name an independent special school in his EHC Plan.
19. The Ombudsman will not investigate this complaint since Ms P had a right of appeal to the Tribunal. The Ombudsman cannot decide where B should receive his education and cannot make changes to his EHC Plan. When parents disagree with their child’s EHC Plan, they can appeal to the SEND Tribunal.

B’s lack of education since December 2021

20. Ms P complains B has not received suitable education since December 2021. She says she told the Council B would not attend the independent special school when he enrolled in January 2022, and the school has not made alternative arrangements for his education when he has not attended. She believes the Council is responsible for arranging alternative provision.
21. The law says parents are responsible for ensuring their children receive suitable education. (Education Act 1996, Section 7).
22. Most do this by sending their children to school.
23. The Council arranged a school place it considers suitable, and the place has been available for B since January 2022.
24. B attended the school for only two sessions.
25. The Council is not obliged to make alternative arrangements because Ms P does not agree with the school named in B’s EHC Plan. Ms P could have appealed to the Tribunal. I consider it would have been reasonable for her to have done so.
26. The school made some efforts to arrange tuition for B even though he would not attend, but these have been complicated by Ms P’s move to Kent where B does not have access to the internet for remote learning.

Ms P’s move to Kent

27. Ms P is unhappy with the education B has received while they have been in Kent.
28. I understand Ms P moved to Kent because of a dispute with her neighbour. This is entirely a private matter for Ms P. I make no judgement about her decision.
29. However, it is Ms P’s responsibility to ensure B receives suitable education. Ms P moved almost 60 miles – during school term – without first making suitable arrangements for B’s education.
30. Ms P is adamant that Merton is responsible for B’s education. In this case, it is her responsibility to ensure he attends the school named in his EHC Plan, or that he is otherwise present in Merton so the Council can consider its powers and duties in respect of his education.
31. It is clearly not feasible for B to make a 120 mile round-trip to school each day from Kent. So, for as long as Ms P is in Kent, she should address her concerns about B’s education to Kent County Council. If she is unhappy with the Council’s response, she can complain and if she is dissatisfied with the Council’s response, she can complain to the Ombudsman.

The school has given notice on B’s placement

32. Ms P complains the school has given notice on B’s placement and this leaves him without education.
33. The Ombudsman cannot investigate complaints about the school. Ms P should approach the Council for the area where she lives in order to make suitable alternative arrangements for B’s education. I understand that since making her complaint to the Ombudsman, Ms P has returned to Merton and the Council is now making alternative arrangements for B’s education.

Other matters

34. B was also the subject of a child protection plan. The Council was concerned about his prolonged absence from education and Ms P’s inability to sort out all the problems they faced. Social workers in the Council’s child protection team encouraged Ms P to apply for a new school place and ‘escalated’ the problem to managers in the special educational needs service.
35. The Council sent me its correspondence with Kent County Council. Kent did not accept it was responsible. It said Ms P’s address in Kent is a seasonal holiday park and her permanent address remains in Merton. It appears a stalemate ensued with neither Council accepting responsibility for B or his EHC Plan.
36. This is a concern. The Council accepts that Ms P is struggling to sort out all her problems, including B’s education. Its social workers recognised the implications of B’s prolonged absence from education for his welfare.
37. Councils have a range of powers in respect of children missing education from arranging alternative provision to prosecuting parents.
38. In B’s case, social workers recognised the reason he was out of education was due to decisions made by Ms P, and in particular her decision to move to Kent without making alternative arrangements for his education. They appear to have tried to encourage and support her to make the necessary arrangements for him to return to school. This appears to have been successful as I understand Ms P returned to Merton in January 2023 and the Council is now providing alternative tuition.

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Final decision

39. I have completed my investigation. B has missed a considerable amount of education, but this was not the result of fault by the Council.

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Investigator's decision on behalf of the Ombudsman