Summary: We found Mr Y’s complaint about the Council failing to pay the independent school where he works a fee increase for two children with Education, Health and Care plans, was not within our jurisdiction. This was because the school could seek a legal remedy through the courts.

The complaint

1. Mr Y complains about the Council failing to pay the independent special school he works at the:
1. increased fee for two children with Education, Health and Care (EHC) plans which named the school despite paying the same fee for two other children at the school; and
2. Education, Health and Care plan top-up funding for another child.
2. As a result, the failures placed the school under tremendous financial pressure which it cannot afford to sustain.

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The Ombudsman’s role and powers

3. 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. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. We may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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What I have and have not investigated

7. I have not investigated complaint b). This was because the Council confirmed it was unaware of this complaint which means we have no jurisdiction to investigate it. The Council must have the opportunity to respond to this complaint through its complaints procedure. The parents of the child involved may wish to consider making a complaint to the Council about it on the basis of the removal, or inadequacy, of funding for an EHC plan.

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How I considered this complaint

8. I considered all the evidence provided by Mr Y, as well as information received from the Council, along with relevant law, policy, and guidance. I sent a copy of my draft decision to Mr Y and the Council.

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What I found

9. Mr Y is employed by an independent special school for children with special educational needs. It educates children with learning disabilities and is registered as a charity.
10. The Council agreed for child 1 and 2 to attend the school which would meet the needs set out in their EHC plans. The Council paid the school for making this provision.
11. In 2024, the school told the Council it would be raising its fees for child 1 and 2 by ten percent (the increase) for the school year 2024/2025. If the Council refused to pay the increase, it would need to find alternative placements for them. The fees were not negotiable.
12. The Council refused to pay the increase, which it said was excessive. The increase amounted to about £31,000. The Council referred the dispute to the Department for Education which signposted it to us. The Council continued to pay the fees previously agreed for child 1 and 2 but not the increase. It said there was no clear evidence of the need for the increase.
13. Mr Y was unhappy with the Council’s decision especially as he claimed it was already paying the increased rate for two other children.
14. The Council confirmed it places children at the school and funds them on the basis it provides the special educational needs set out in EHC plans. Funding was agreed at the time of the placement of child 1 and 2 but the increase was significantly above what it considered appropriate. It was unable to provide a copy of any relevant contract with the school about placements and funding.

My findings

15. In reaching my decision that this complaint should not be investigated further, I took account of the following:
1. The school provided a service to the Council for which it received payment.
2. There was clearly an agreement between the two about what the school would charge, and what the Council would pay, for it making the provision needed under the EHC plans for child 1 and 2.
3. The complaint received from the school was about the Council failing to agree, and pay, the increase it decided to apply to the fees. Even if we could investigate this complaint further, I fail to see the basis on which we could decide whether there was fault or not by the Council. The starting point would be the need to consider whether the Council had any obligation to pay the increase. The most obvious form of obligation would be contractual.
4. While the Council was unable to provide a copy of any contract it had with the school, this did not mean there was no contract at all. It would be for the courts to decide whether there was a contract or not in these circumstances. To do this, the courts may need to consider the course of dealings between the school and Council. This may also involve examining copy emails and telephone contact records, for example, between the school and the Council which showed what discussions were held before the placement of the children. Once the issue of the contract’s existence was decided by the courts, the courts would then be able to decide whether the Council breached it by refusing to pay the increase.
5. At the root of this complaint was the school’s belief it had the right to increase the fees by ten percent which the Council had to pay. On balance, I am satisfied it was likely the school, and the Council, had a commercial relationship about the provision of a service. They were not unequal parties to this arrangement as information about the school showed they had substantial financial reserves and a substantial fixed asset fund.
6. When satisfying myself the school had a legal remedy available to it against the Council I considered:

• The school had the opportunity of obtaining a remedy through the courts which would be asked to confirm a contract existed and whether the Council had breached it;
• The school had not used this opportunity; and
• I exercised discretion not to investigate this further because it was reasonable for the school to use this legal remedy. I have seen no evidence that persuades me I need to consider exercising discretion to investigate this complaint.

16. I also considered whether we should investigate on the ground child 1 and 2, might lose their places at the school because of the Council’s refusal to pay the increase or top-up funding. This would also include investigating whether the Council failed to comply with its duty to ensure the children received provision required under the EHC plans.
17. I decided not to investigate this because:
1. This was not the complaint made to us by the school;
2. There was no information showing the two children were removed from the school;
3. Even if they had been removed, there was no information to show the Council had then failed to ensure they received the provision required by their EHC plans;
4. There was no complaint, or consent to make a complaint, about the children being moved from the school from the parents or that they had not been given the provision set out in their EHC plans; and
5. This meant any injustice we would need to consider during an investigation would be speculative as the children may well have remained at the school, received the provision set out in their EHC plans, with neither them nor their families aware of the dispute.
18. The Council confirmed, in its response to my draft decision, that both children were still attending the school.

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Decision

19. I found Mr Y’s complaint against the Council is outside of our jurisdiction.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman