The Ombudsman's final decision
Summary: Ms M’s son, B, has missed a considerable amount of education. This does not appear to be the result of fault by the Council.
The complaint
Ms M complains her son, B, has been out of education for three years.
The Ombudsman’s role and powers
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)
How I considered this complaint
I have considered: information provided by Ms M; information provided by the Council.
I invited Ms M and the Council to comment on my draft decision.
What I found
Ms M’s son, B, is a primary school-aged pupil. He has an Education, Health and Care (EHC) Plan maintained by the Council. His plan includes 30 hours per week of one-to-one support.
He attended a mainstream nursery, where he had a behaviour support plan, and was due to move to a mainstream Reception class in the 2019 – 2020 school year.
In July 2020, the school held an emergency annual review of B’s EHC Plan at Ms M’s request. B had not attended school since the ‘lockdown’ in March 2020.
The school’s report following the review says Ms M did not believe B would be able to return to school after the lockdown. The school noted there had been difficulties when B attended the nursery before the lockdown. The report said Ms M would like a ‘tailored package’ of specialist education and home education for B, and would like to ‘manage his SEN budget’. The school supported Ms M’s wishes. The school said it had struggled to meet B’s special educational needs.
Ms M asked the school to remove B from the roll.
The Council noted B had not had chance to start in Reception because of the pandemic. The Council was satisfied B’s EHC Plan remained appropriate. The Council said it would contact the school to discuss additional support to reintegrate B to school. The Council declined Ms M’s request for a personal budget of £98,000. A Personal Budget is payment by the council to allow a parent to secure the provision set out in an EHC plan themselves. The Council’s letter explained Ms M had a right of appeal to the Tribunal against its decision not to amend B’s EHC Plan.
The Council returned B to the school roll. However, B did not return to school. Ms M told me that he could not cope, so she decided not to send him.
In March 2021, Ms M complained to the Council that B was not receiving suitable education. She asked for alternative provision and said she expected B to be ‘taken out of the home’ to provide some respite for her. Ms M’s correspondence with the Council says, “With regards to the Tribunal, I have not received any further information, but I will keep you posted with any further developments.”
The Council referred B’s case to its Inclusion Service. The Inclusion Service responds to children missing from education. The Council said it would contact the school to see what alternative arrangements could be made pending the outcome of Ms M’s appeal to the Tribunal.
The Council asked the school to make a referral to a flexible, short-term education service for children unable to attend school. The service was unable to offer tuition as there was a place available for B at the school. However, it offered a learning mentor to support B’s return to the school. The Council told Ms M it had not received notification of her appeal from the Tribunal.
Ms M declined the offer of a learning mentor to support B’s return to the school.
In June 2021, Ms M asked the Council to arrange provision through a local charity specialising in play for disabled children and young people. She said this would provide respite for her and social interaction for B. She said B would also need transport to the venue. She said, “You know as well as I that the Tribunal are likely to agree with myself and order [you] to accommodate B’s specific needs.”
The Council confirmed B remained on roll at the school with a substantial package of support; the school had secured an offer of a learning mentor from to support B’s reintegration to school; the upcoming annual review would be an opportunity for the school to report any difficulties meeting B’s needs; and the Council could make a referral for support from the play charity during the school holidays.
It appears Ms M had not, in fact, appealed to the Tribunal despite her emails to the Council which implied she had.
In October 2021, Ms M complained to the Council. The Council responded at the first stage of its complaints process on 9 November 2021. It appears there was a slight delay by the Council in completing the annual review of B’s EHC Plan following the annual review meeting held by the school in September 2021. The Council said it would issue a draft amended plan by 30 November 2021. However, in respect of B’s absence from education, the Council said it was satisfied there had been a suitable school place available for him and his EHC Plan provided all the necessary support. In these circumstances, the Council said it was Ms M’s responsibility to ensure he attended school.
In November 2021, Ms M contacted the school. She said she needed B to be back in education, and her only option was “to send him back to the school, unless you can permanently exclude him?” She said she believed this would “force the LA to place B in specialist provision without the need for a Tribunal.”
The school again arranged for a learning mentor to support B’s reintegration to school.
Following the September 2021 annual review, the Council issued an amended EHC Plan in January 2022. The Plan continues to name B’s current school. Ms M is unhappy with the plan. Having declined mediation, she obtained a certificate from a mediation advisor. This is the first step in lodging an appeal with the Tribunal.
In February 2022, Ms M emailed the Council. She said she would lodge an appeal with the Tribunal in seven days and had approached her local MP with a view to beginning Judicial Review proceedings. However, it is unclear from her email what she wanted the Council to do. She alleged Council officers were “pocket lining criminals”.
Also in February 2022, Ms M asked the Council to name an independent special school in Section I of B’s EHC Plan. The Council said it was unable to comply with Ms M’s request as the school did not take children of B’s age. The Council consulted a number of other schools instead.
Ms M asked the Council to contact her preferred school as B was a summer-born child and she believed he would be old enough by the start of term in September.
Unhappy with the Council’s response, Ms M complained to the Ombudsman in April 2022.
Update: events since Ms M’s complaint to the Ombudsman B remains on roll at the school. The Council confirmed that Ms M has not appealed to the Tribunal.
B remains out of education. In September 2022, the school contacted a local charity offering animal assisted outdoor learning to young people who are struggling in education. The charity confirmed it could take B, but there were no places available at the time. It suggested the school make a referral so B could join the waiting list.
Later in September, Ms M emailed me to say she had removed B from the roll at the school named in his EHC Plan.
I spoke to Ms M. I asked why she had not appealed to the Tribunal given her disagreement with the Council about which school B should attend. Ms M said the Tribunal was a waste of time.
I also asked whether she was unwilling to send B to the school named in his Plan, or whether the school had refused to accept him. Ms M said the school told her he was not coping. She said it was clear he was not enjoying school and he was showing signs of anxiety, so she ‘did what she thought was right and what every parent would do’. Ms M withdrew B from school.
Consideration At the heart of Ms M’s complaint to the Ombudsman is a disagreement between Ms M and the Council about where, or how, B should be educated.
The Council believes a local mainstream primary school can meet his needs with the substantial support set out in his EHC Plan.
A place is available for him, and the Council will make available the support in his EHC Plan should he attend.
It appears the Council has decided to consult other schools since February 2022, but consultations have yet to result in an alternative offer. The mainstream primary school continues to be named in B’s EHC Plan.
It appears that while the school may have reservations about its ability to meet B’s needs, it has continued to engage with Ms M and made efforts to provide education when called upon to do so.
Ms M does not consider the school can meet B’s needs. At first, she wanted home tuition with a personal budget to meet B’s special educational needs. Now she would like B to attend an independent special school.
Ms M has repeatedly told the Council she has or will shortly be appealing to the Tribunal. There have been numerous opportunities for her to appeal over the three years B has been out of school. However, to date she has not lodged an appeal.
While I recognise that appeals to the Tribunal can be time-consuming and may be an unwelcome prospect for parents, I do not agree with Ms M that they are a waste of time. Indeed, for disagreements such as the one between Ms M and the Council about how B should receive education, an appeal to the Tribunal appears to be the only way to find a solution. The Ombudsman has neither the authority nor the expertise to decide.
Further, as it was Ms M’s decision to withdraw B from school, and she has not used her rights of appeal to the Tribunal to attempt to secure suitable alternative education, do not consider there are grounds for the Ombudsman to pursue the matter further.
The Council appears to be willing to consider a new school for B, but has been unable to find a school able to accept him. Until a new school is found, the Council is willing to provide considerable support to enable B to attend the mainstream school named in his EHC Plan.
Based on the evidence I have seen, I do not find the Council was responsible for the education B has missed.
Final decision
I have completed my investigation. B has missed a considerable amount of education, but this is not the result of fault by the Council.
Investigator's decision on behalf of the Ombudsman