Summary: Miss X complained the Council failed to provide her son with a suitable education and support for his special educational needs. We have discontinued this investigation because Miss X had an alternative remedy by which to challenge the Council’s actions. The fact she was unaware of the appeal process was not due to fault by the Council.

The complaint

1. Miss X complains about the Council’s failure to provide her son, Y, with a suitable education and support for his special educational needs (SEN) since he started secondary education.
2. In particular, she complains about:
1. delay in finding a suitable school place;
2. failure to provide alternative education and support for his SEN when Y was unable to attend school due to chronic anxiety;
3. failure to advise her of her right to appeal to the SEND Tribunal; and
4. poor communication.
3. Miss X says the impact of Y being out of school has been significant. She has been unable to work and it has put a tremendous strain on the whole family.

Back to top

The Ombudsman’s role and powers

4. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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. Where someone has appealed we cannot investigate the matter under appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as “the Tribunal” in this decision statement.
8. The Court in R (on the application of ER) v the Commissioner for Local Administration, 2014 confirmed that we cannot investigate a decision which has been appealed to the SEND Tribunal, and we also cannot consider the consequences of that decision. This means that where a pupil does not attend the school named on their EHCP because their parent considers the school is unsuitable, and a council does not provide alternative educational provision, the Ombudsman cannot investigate any failure to provide education if the parent has made an appeal to the Tribunal about the school’s suitability. The Court said in ER that the decision (to name a school parents consider ‘unsuitable’) and the consequence (that the child does not attend the school and missed education) were ‘inextricably linked’ and outside our jurisdiction.
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)

Back to top

How I considered this complaint

10. I spoke to Miss X and considered the information she provided.
11. I made enquiries of the Council and considered its response and case records.
12. I reviewed the relevant law and guidance.
13. Miss X and the Council had an opportunity to comment on my draft decision. I considered all comments received before making a final decision.

Back to top

What I found

Relevant law and policy

Education, Health and Care Plans

14. A child with special educational needs may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. Section I specifies the name and type of the educational provision. We cannot direct changes to the sections about education or name a different school. Only the Tribunal can do this.

Alternative Provision

15. 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).

What happened

16. Y is of secondary school age and has SEN. In 2021, following an assessment, the Council agreed to issue an EHCP.
17. Up to this point, Y had struggled to attend school for several years due to chronic anxiety. When schools reopened after Covid 19 lockdown in 2020/21, Y did not return. He received some home tuition, arranged by his current school, School B.
18. Miss X said School B, was unable to meet his needs and he needed a specialist placement. She asked the Council to consult with School P (a special independent school), with the hope of this being named in the EHCP. The Council said this was not possible because it was not suitably approved.
19. In February 2022, the Council issued a final EHCP. This named School B at section I. The Council said it did so to give Miss X the right to appeal to the Tribunal. Miss X did not appeal because she says she did not receive information about her appeal rights.
20. In April 2022, the Council suggested alternative provision may be appropriate. This was arranged, but Y only attended two sessions.
21. An annual review was held in July 2022. This acknowledged the fact Y had not attended School B and the alternative provision had not been very successful. School B said it was unable to meet Y’s needs and it thought he needed some therapeutic input over his anxiety.
22. Following this annual review, the Council wrote to Miss X to say it did not intend amending the EHCP. School B would continue to be named in the EHCP. Miss X was told she had a right of appeal to the Tribunal. As before, Miss X did not appeal because she says she was unaware of the process.
23. The Council consulted with several possible schools in August and September 2022. None were able to offer Y a place.
24. Meanwhile, Y remained out of education. The Council contacted alternative providers in October 2022 and February 2023. During this time, Y attended some alternative provision.
25. In February 2023, the Council agreed funding for Y to attend College Z, an independent special school as from September 2023.

Analysis

26. I have discontinued this investigation.
27. Miss X had a right of appeal to the Tribunal against the Council’s decision to name School B in the EHCP in February 2022. We normally expect a person to have used this alternative remedy if they disagree with the type of school and therefore would not investigate. In my opinion, the Council’s decision to name School B at Section I lies at the heart of this complaint.
28. We may use our discretion to investigate where we consider it was unreasonable for a parent to appeal to the Tribunal.
29. I do not consider there are grounds to exercise discretion to investigate in this case for the following reasons.

Notification of appeal rights

30. Miss X had two opportunities to appeal the content in the EHCP in February and September 2022. She says she did not do so because she was unaware this was method of challenge was available.
31. I have been provided with letters from the Council to Miss X from February 2022. This letter properly set out what Miss X should do if she was unhappy about the content of the EHCP.
32. This letter was sent as one of two attachments to an email. Miss X says she was only able to open one of the attachments. This was the final EHCP.
33. When she tried to open the other attachment, a blank screen with a service provider message appeared.
34. Based on this evidence, I am satisfied Miss X was not aware of her appeal rights.
35. While this is unfortunate, I do not consider this was through any fault by the Council. The email to Miss X shows two attachments were sent. I consider it was reasonable for Miss X to have contacted the Council to ask it to resend the information she was unable to access.
36. Based on the evidence, the Council should not be held responsible for the fact Miss X was unable to open some of the attachments.
37. I have no reason to believe, had Miss X been aware of her appeal rights, she would not have lodged an appeal in February 2022. This is because the Tribunal was the clearly the correct forum of addressing her main of concern and this was explained in the attachment that Miss X was unable to open.

All areas of complaint are inextricably linked to matters that were appealable to the Tribunal

38. Because I am satisfied Miss X had an alternative remedy that it was reasonable for her to have used, this also means I will not investigate Miss X’s complaint insofar as it relates to the provision contents of Y’s EHCP from the point she could have reasonably appealed in February 2022.
39. In my view, the requirement to provide suitable alternative education is inextricably linked to the naming of a school placement for which Miss X had a right of appeal. This is because, but for the Council not naming a suitable placement, alternative provision would not have necessary.
40. Paragraph 8 (above) is relevant to my decision. Case law has firmly settled the Ombudsman does not have the legal jurisdiction to question the suitability of alternative education provision, or other related matters such as delay and poor communication, where someone has appealed to the Tribunal.
41. While Miss X did not actually appeal, this was not due to fault by the Council. For this reason, I do not consider it reasonable to exercise my discretion to investigate what happened after the appeal right arose.

Back to top

Final decision

42. I have discontinued my investigation for the reasons I have explained in this decision statement.

Back to top

Investigator's decision on behalf of the Ombudsman