Oxfordshire County Council (23 009 808)

Category : Education > Special educational needs

Decision : Not upheld

Decision date : 28 Mar 2024

The Ombudsman's final decision:

Summary: Miss X complained the Council failed to provide her son, Y, who has an Education, Health and Care Plan, with a suitable, full-time education for a whole academic year. The law does not allow the Ombudsman to investigate the matters Miss X complains of because they were subject to a tribunal appeal. Therefore, we have ended our investigation of this complaint.

The complaint

  1. The complainant, who I shall refer to as Miss X, complains the Council failed to provide her son, Y, with suitable full-time education for the academic year 2022-2023.
  2. Miss X also complains about the Council failing to respond to her complaint in accordance with the timescales in its complaints procedure.

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The Ombudsman’s role and powers

  1. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
  2. 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)
  3. 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

  1. I considered Miss X’s complaint and the information she provided.
  2. I considered the information I received from the Council in response to my enquiries.
  3. Miss X and the Council were given the opportunity to comment on a draft of this decision. I considered Miss X’s comments before making this final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans

  1. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
  2. The procedure for assessing a child’s special educational needs and issuing an EHC Plan is set out in regulations and Government guidance.
  3. An EHC Plan should name the school, or type of school, the child will attend. Councils must consult with schools before naming them in a child’s Plan.
  4. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s Plan.
  5. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (code of practice) sets out the process for carrying out EHC assessments and producing EHC Plans. It deals with reviewing plans as follows.
  6. Councils must review an EHC Plan at least every 12 months. The first review must take place within 12 months of the date when the EHC Plan was issued, and then within 12 months of any previous review. They may carry out a review earlier.
  7. The review meeting should consider how appropriate the EHC Plan is in the light of the child or young person’s progress or any changes of circumstances.
  8. The Council must write to the child’s parent or the young person within four weeks of the review meeting to say whether it proposes to keep the EHC Plan as it is, amend it or end it.
  9. If the Council decides not to amend the Plan, it must write to the parent or the young person with its decision and tell them about the right of appeal.
  10. If the Plan needs to be amended the Council should start the process of amending, it without delay. It must:
    • send the child’s parent or the young person a copy of the EHC Plan with details of the proposed amendments and any evidence it has supporting the amendments;
    • tell them of their right to ask for a particular school or other placement to be named in the EHC Plan and advise where they can find information about placements available;
    • give the parent or young person at least 15 days to make representations on the proposed changes or request a particular school.
  11. If the Council decides to amend the EHC Plan following the representations it must issue the final amended Plan within eight weeks of the original amendment notice. It must tell the parent or young person about their right of appeal.
  12. An EHC Plan must be reviewed and amended in sufficient time before a child or young person moves between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools.

Right to Education and Alternative Provision

  1. Parents have a duty to ensure their children receive a suitable, full-time education. Most do this by sending their children to school. (Education Act 1996, section 7)
  2. Local authorities have a duty under section 436A of the Education Act 1996 to make arrangements to establish the identities of children in their area who are not registered pupils at a school and are not receiving suitable education otherwise. This duty only relates to children of compulsory school age.
  3. The local authority should consult the parents of the child when establishing whether the child is receiving suitable education. Those children identified as not receiving suitable education should be returned to full time education either at a school or in alternative provision. Prompt action and early intervention are crucial to discharging this duty effectively and in ensuring that children are safe and receiving suitable education.
  4. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school-age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” The only exception to this is where the physical or mental health of the child is such that full-time education would not be their best interest. (Education Act 1996, section 19(1))
  5. The education provided by the council must be full-time unless the council decides that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
  6. Our July 2022 focus report on children out of school, “Out of school, out of sight” highlights the duty of councils to arrange alternative provision when a child of compulsory school age cannot go to a school. In such cases, councils should keep all plans for the young person under review and not allow them to drift. The report made seven recommendations based on examples of good practice seen. It said councils should:
    • Consider the individual circumstances of each case and be aware that the council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis) and even when a child is on a school roll.
    • Consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions.
    • Choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative education.
    • Keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.
    • Work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary.
    • Put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
    • Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, retain oversight and control to ensure your duties are properly fulfilled.

The Council’s Complaints Procedure

  1. The Council’s corporate complaints process has two stages. At Stage 1 the Council will acknowledge receipt of the complaint within 3 working days and respond to the complaint within 10 working days after the date of acknowledgement.
  2. At Stage 2, if the Council decides there are grounds for further investigation of the complaint, it will respond within 20 working days after the date of acknowledgement.

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What happened

  1. Miss X has a son, Y, who has an Education, Health and Care (EHC) Plan maintained by the Council. Y was attending a mainstream primary school and he was due to start his secondary education in September 2022. Miss X was of the view Y required a placement at a specialist school, and not a mainstream secondary school, due to his needs. Miss X made the Council aware in January 2022 that should the Council name a mainstream secondary school for Y in his EHC Plan, she would not be sending him there.
  2. After an emergency annual review of Y’s EHC Plan, the Council named School 1, a mainstream secondary school in his final plan which it issued in April 2022.
  3. In May 2022, Miss X appealed the Council’s decision to name School 1 in his EHC Plan. The SEND Tribunal received Miss X’s appeal in May 2022. Miss X requested School 2, a specialist school, be named instead.
  4. By September 2022, the Council had considered a change from mainstream to a specialist setting for Y on at least three occasions. On each occasion, the Council decided Y’s needs could be met in a mainstream setting.
  5. Y was due to start his placement at School 1 in September 2022. The Council provided funding to School 1 to enable it to deliver the provision in Y’s EHC Plan. From September 2022 until December 2022, School 1 tried various strategies including one to one support to encourage Y to attend but these were declined by Miss X. The Council did not take legal action to enforce attendance.
  6. From January 2023 to July 2023, the Council arranged alternative provision. The Council says most of the provisions were one to one and intensive. Miss X privately funded some provision also.
  7. Miss X complained to the Council in October 2022 and the Council sent its final stage 2 response to her complaint in April 2023. The Council apologised for the delay in responding to her complaint and it said that an enhanced package of support was now in place for Y and that he was receiving appropriate alternative provision as an interim measure whilst the appeal was ongoing.
  8. Two days before the appeal hearing at the SEND Tribunal, the Council agreed to name a specialist placement, School 2, for Y. Y began his placement at School 2, a specialist setting, in September 2023.

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Analysis

  1. Miss X’s complaint is about the provision Y received from September 2022 to July 2023. Y’s EHC Plan named School 1 as the placement to meet his needs and the Council provided the school with funding to deliver the provision in his EHC Plan.
  2. In April 2022 Y’s EHC Plan was finalised. At that point Miss X had a right of appeal to the SEND Tribunal which she used in May 2022. The law says we cannot consider matters that are closely related to an appeal. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
  3. Y’s EHC Plan named a placement. The placement confirmed it could provide Y with provision with the extra funding provided by the Council. Miss X’s appeal related to Y’s provision set out in the Plan and the placement named in the EHC Plan. The placement and provision subject to the appeal cannot be separated. Therefore, we could not look at the lack of education as that was linked to the disagreement about the named placement. I cannot consider Miss X’s complaint about the support provided during the appeal period between April 2022 and July 2023.
  4. For the reasons set out above, I have ended my investigation.
  5. Miss X also complains about the Council’s handling of her complaint. We will not usually investigate a complaint about a council’s complaint handling if the complaint itself is not a matter we can consider.

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Final decision

  1. I have ended my investigation because the law does not allow the Ombudsman to investigate any matter which is ‘inextricably linked’ to matters under appeal. Therefore, I have closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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