Summary: The complainant (Ms X) complained about the lack of support for her son (Y) during his transition to a post-16 institution and about non-delivery of his special educational provision. We will not investigate whether the Council ensured delivery of Y’s special educational provision as these matters are too closely linked with the appeal to the Special Educational Needs and Disabilities Tribunal. We did not find fault with the Council for its role in Y’s transition to the post-16 placement.

The complaint

1. Ms X complains about the Council’s inadequate support for Y during his transfer to the college and the Council’s failure to ensure all his special educational provision were delivered.
2. The Council’s failings, Ms X says, had negative effects on Y who could not engage properly with a new placement. He struggles with attendance and his behaviour has worsened.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. In determining whether to initiate, continue or discontinue an investigation we act in accordance with our own discretion, subject to the provisions of sections 24A, 26 and 26D of the Local Government Act 1974. (Local Government Act 1974, section 24A(6), as amended)
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. 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)
8. 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.
9. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
10. The existence of an alternative remedy (such as a right of appeal to the SEND Tribunal) will preclude the Ombudsman from investigating, as a result of Section 26(6)(a) of the Local Government Act 1974, notwithstanding that that remedy may be incomplete. (R v Commissioner for Local Administration ex parte Field [1999] EWHC 754 (Admin); R v Commissioner for Local Administration (ex parte H) [1999] ELR 314)

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What I have and have not investigated

11. I have not investigated whether the Council complied with its duty to ensure delivery of special educational provision included in Y’s Education Health and Care (EHC) Plan. Ms X appealed Sections B and F of Y’s EHC Plan. She asked the Tribunal to include one day a week of extra provision as well as extending Y’s post-16 provision across five days. The absence of this extra support in Y’s EHC Plan had affected, Ms X claimed, Y’s engagement with the College and the provision it was offering. I therefore consider delivery of special educational provision was closely linked with the appeal and, as explained in paragraph nine of this decision we cannot look at it.

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How I considered this complaint

12. I spoke with Ms X and her representative and considered the information they provided.
13. I made enquiries with the Council and considered the information it provided.
14. I reviewed Statutory Guidance “Promoting the education of looked-after children and previously looked-after children”.
15. Ms X and the Council 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

Legal and administrative framework

16. As children approach the transition point, schools and colleges should help them and their families with more detailed planning. In Year 11 they should aim to support the young person and their family to firm up their plans for their post-16 options and familiarise themselves with the expected new setting. In the period leading up to the transition schools should work with young people and their families and the new college or school to ensure that their new setting has good understanding of the young person’s aspirations and how they would like to be supported. (Special Educational Needs and Disabilities Code of Practice: 0 to 25 years, January 2015 paragraphs 8.21 and 8.22)

What happened

Background

17. Y had some involvement from the Virtual School as previously looked after child.
18. In Year 11 Y was on roll of a mainstream secondary school and attended the alternative provision supporting children and young people who cannot attend mainstream schools (the Alternative Provider). The Alternative Provider delivered tutoring, mentoring, counselling and work on independent living skills.

EHC Plan

19. In mid-March 2023 the Council received a request for an EHC needs assessment for Y.
20. The Council issued Y’s draft EHC Plan in the third week of July and another version in the third week of September. It issued a final EHC Plan at the beginning of October 2023. Provision from the Alternative Provider and the specific transition arrangements were not included in Section F of the EHC Plan. A mainstream post-16 institution (the College) was named in Section I.
21. Ms X appealed Sections B and F of Y’s EHC Plan at the beginning of December. She asked for the educational provision for Y to be extended across five days a week and to include one day at the Alternative Provider. Ms X also asked the SEND Tribunal to make recommendations for Health and Social Care.
22. The Council failed to respond to the appeal in the third week of January 2024 as it did not receive the appeal documents from the Tribunal. In the first week of February the Tribunal re-sent the documents to the Council.

Transition to the College

23. Throughout summer 2023 Ms X communicated with the Council about Y’s need for:
• continuing support from the Alternative Provider to ensure his smooth transition to the College, and
• support in resitting Y’s Maths General Certificate of Secondary Education (GCSE) exam.
24. From the beginning of September 2023 Y started attending the College. Ms X raised concerns about the way the College was addressing Y’s needs. She stressed again the importance of a proper transition for Y with support from the Alternative Provider.
25. Following communication from Ms X the Council asked the College for an update on Y’s progress in a new placement. The College said it could meet Y’s needs and provide Maths tutoring to prepare him for his Maths GCSE exam. The Council told Ms X that any day-to-day difficulties should be resolved directly with the College. The Council also told Ms X about Personal Budget.
26. A few days later the College provided Ms X with an update on Y’s engagement. The College said Y had refused to accept individual support in the class, despite its availability. Y could not engage with Maths sessions as he claimed to prepare for a GCSE exam he needed individual tutoring, as he had at the Alternative Provider.
27. At the end of October Ms X asked for Personal Budget, which would fund individual Maths sessions, some Information Technology equipment and one day per week at the Alternative Provider. The Council refused this request based on the College’s confirmation it could meet Y’s needs and deliver his special educational provision without any extra resources.
28. Responding to Ms X’s email at the end of December 2023 the College said it had not registered Y for any exams as he had failed to do enough work. Y’s poor attendance was noted.

Analysis

Transition to post-16 institution

29. During his transfer to the College Y did not have an EHC Plan. As explained in paragraph 16 of this decision when a young person has special educational needs but no EHC Plan it is a joint responsibility of his school and a new placement to find out what support arrangements for the transition the young person needs and to put them in place. We cannot therefore hold the Council responsible for any potential failings within Y’s transition to the College. I found no fault on the Council’s part.
30. We cannot look at anything that happens at schools or post-16 institutions, therefore Y’s transition to the College is outside our jurisdiction.

Delivery of special educational provision

31. Throughout her correspondence with the Council Ms X insisted Y needed his education to be provided across five days a week, including one day at the Alternative Provider. This, she said, was necessary for him to engage with education and achieve his goals. In her appeal she asked for this provision to be added to Y’s EHC Plan.
32. I do not consider it would be possible to decide which provision could and should have been delivered to Y even without the extra support Ms X was appealing for. As Ms X appealed the content of Section F of Y’s EHC Plan and claimed Y’s engagement with education was dependent on the extra support, I consider delivery of Y’s special educational provision is too closely linked with the appeal for us to be able to investigate.

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Final decision

33. I do not uphold this complaint. I found no fault with the Council. I will not investigate delivery of Y’s special educational provision as it is too closely linked to Ms X’s appeal to the SEND Tribunal.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman