Summary: We cannot investigate this complaint about a child’s secondary school placement because it has been subject to an appeal, which means it is outside our jurisdiction. We could investigate a complaint about a lack of educational provision for that child, but the complainant must first raise it formally as a complaint to the Council. And without being able to consider these points, we cannot meaningfully investigate a more general complaint about poor communication from the Council with regard to them. We have therefore discontinued our investigation.

The complaint

1. I will refer to the complainant as Miss B.
2. Miss B complains about the Council’s handling of matters concerning the education of her daughter, L, who has special educational needs. Specifically, she says the Council has failed to engage properly with her about L’s upcoming transfer to secondary school, and about the fact she has not been receiving full-time education at her current school.
3. Miss B says this has had a serious impact on L’s mental health, and caused distress and disruption to her and the rest of her family.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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) 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.
6. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)

We do not start or may decide not to continue with an investigation if we decide further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

7. I reviewed Miss B’s complaints correspondence with the Council.
8. I also shared a draft copy of this decision with each party for their comments.

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What I found

9. L has several physical and developmental disorders and is subject to an education, health and care (EHC) plan. She is due to begin secondary school in September 2023.
10. Miss B complains the Council did not engage properly with her about the secondary placement which was to be named on L’s EHC plan. After initially agreeing L should attend a specialist school, the Council decided she could manage at a mainstream school with support. Miss B strongly disagreed with this, with the support of a number of professionals, but complained the Council regularly failed to respond, or responded very late, when she attempted to contact it to discuss the placement issue. She also said the Council did not consult with the schools she thought may be suitable for L.
11. Miss B also complains the Council failed to engage properly over the fact L was not receiving proper full-time education at her primary school. Miss B says L was spending most of the school day in 1:1 sessions with a teaching assistant, was frequently absent from school for health reasons, and more recently has stopped attending school entirely.
12. The Council investigated Miss B’s complaint at the three stages of its process. It upheld the complaint, agreeing its level of communication with Miss B was unsatisfactory. It offered her a remedy of £300, which it then increased to £500, and said it had made changes to the structure of its SEN team, and recruited more staff, to improve the service it offered.
13. Dissatisfied with the Council’s responses, Miss B approached the Ombudsman in June 2023.

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Analysis

14. Miss B’s complaint covers two substantive points – that of L’s secondary school placement, and that of the provision available to her and her attendance at school – and, more generally, the Council’s failure to engage and communicate properly with her about these matters.
15. As explained at paragraph 5, the law says we may not investigate a matter which is the subject of an appeal to a tribunal, and nor may we investigate any matter which is inextricably linked with such an appeal.
16. The Council has confirmed Miss B has made an appeal to the SEND Tribunal against the placement named in L’s EHC plan, and as such, this restriction on our jurisdiction applies here. And Miss B’s complaint about the way the Council engaged with her or schools about the placement issue is inextricably linked to the matter subject to appeal, meaning this is also outside our jurisdiction.
17. I am aware the Council has now agreed to Miss B’s choice of placement anyway, and so it may be Miss B has withdrawn this element of her appeal. However, the restriction on our jurisdiction still applies, even where an appeal is withdrawn.
18. With regard to the provision and attendance issue, I have reviewed Miss B’s complaints correspondence with the Council. There is, however, no reference at all to this matter in either her stage 1 or 2 complaints. Miss B did refer to it in her stage 3 complaint, but I consider this was only as context to her more general complaint about engagement and communication, and not as a substantive point in its own right. And I note the Council did not address this point in its responses, suggesting it did not recognise it as being part of the complaint.
19. I also note Miss B says L stopped attending school in June, which was after the Council’s final response to her complaint. This point, in particular, therefore, cannot be said to have formed part of her complaint.
20. The law says we must allow the relevant authority a reasonable opportunity to investigate and respond to a complaint, before we accept it for investigation. As Miss B did not raise the provision and attendance issue as a specific complaint, I do not consider this requirement has been satisfied here, and we therefore cannot accept this point for investigation yet.
21. For jurisdictional reasons we cannot, therefore, investigate either of the substantive points here.
22. There is no jurisdictional reason preventing us from investigating the more general point about poor engagement and communication. However, without being able to consider this in context, I am not persuaded it could bear meaningful investigation.
23. This is especially so given the Council has upheld Miss B’s complaint and offered her a remedy in line with our guidance. I understand this was not Miss B’s purpose in making the complaint, but again, without being able to consider the complaint in context, it is very unlikely we could recommend anything further than what the Council has already offered.
24. Taking these points together, therefore, I will end my investigation at this point. If she wishes to pursue the ‘provision’ issue, Miss B may make a further complaint to the Ombudsman in future, after making a formal complaint about it to the Council.

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Draft decision

25. I have discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman