Summary: The Council was not at fault for how it arranged the delivery of Mrs X’s son’s special educational needs provision. It looked into how his school was delivering the provision and decided it had no concerns.

The complaint

1. The complainant, whom I refer to as Mrs X, complains that the Council did not listen to her when deciding the level of 1:1 support which her son, who has a diagnosis of autism, should receive in class. I refer to her son as Y.
2. Mrs X also complains that the Council is not providing Y with the special educational needs (SEN) support it agreed to.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I considered information from Mrs X and the Council. Both 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

What happened

7. Mrs X complained to the Council in August 2023. She said:
• She told the Council, and other professionals, that Y needed 1:1 support in class, but nobody listened to her. She implied that she did not agree with the SEN support the Council decided for Y.
• Nonetheless, Y’s school is supposed to deliver some 1:1 support from a key person, but it is not doing so. There are no teaching assistants in Y’s class of 31 children.
8. The Council responded to Mrs X’s complaint, saying that, as she disagreed with the SEN provision the Council had decided for Y, she had a right of appeal to the SEND Tribunal. Consequently, it did not investigate her complaint. It says her complaint about Y’s school’s delivery of his SEN provision was not clear within her correspondence.
9. Y’s education, health and care (EHC) plan – a document which sets out his SEN and the arrangements which should be made to meet those needs – does not appear to explicitly say that Y should have 1:1 support in lessons. However, it does say he should have “Consistent key adult support available during Literacy and Numeracy lessons (daily 60- minute lessons x 2)”.
10. The Council has provided evidence of monitoring it conducted of Y’s school between June and September 2023, during which no concerns about Y’s SEN provision were identified.
11. And, since Mrs X complained to us, the Council has contacted Y’s school to check the SEN provision he is receiving. It told the Council that 1:1 support is available to Y during all English and maths lessons unless there is a staff absence. When there is an absence, the school makes adjustments to the timetable to try and ensure 1:1 support is still available.
12. The Council decided, after receiving this information from Y’s school, that it has no concerns about how the school is delivering his SEN provision.
13. The Council offered a meeting with Mrs X to discuss her concerns (which she declined). It says it remains happy to do this.

My findings

14. As Mrs X can appeal (or may have already appealed) the provision named in Y’s EHC plan to the SEND Tribunal, there was no fault in the Council’s refusal to investigate her complaint about this. And, for the same reason, I will not investigate it either.
15. Mrs X also complained that Y is not receiving the support which is actually in his EHC plan (which the Council has a duty to deliver, irrespective of any pending appeal from Mrs X). The Council did not respond to this point of her complaint, saying it was not clear.
16. Although the clarity of Mrs X’s complaint is a matter for debate, I have decided that – irrespective of the Council’s refusal to investigate it – Mrs X suffered no significant injustice. This is because the Council:
• has now looked into this and has decided there is no evidence that Y is missing out on SEN provision.
• offered Mrs X a meeting to discuss her concerns, which she can still accept if she wants to.
17. It is not for me to decide whether Y is receiving the right provision. That is for the Council, which is ultimately responsible for its delivery.
18. As the Council has looked into this, is satisfied with the provision Y’s school is delivering to him, and has provided evidence to support its view, there is nothing I can add.

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Final decision

19. The Council was not at fault for how it arranged the delivery of Y’s SEN provision.

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Investigator's decision on behalf of the Ombudsman