The Ombudsman's final decision
Summary: There was no fault by the Council when it decided that reduced hours of attendance at school were in the best interests of a child while his Education, Health and Care needs assessment was carried out. Most of the complaints about Y’s education are outside the Ombudsman’s jurisdiction as his parent took legal action against the Council.
The complaint
The complainant, who I shall call Mrs X, complains that her child, Y has missed out on education from September 2020 until June 2022.
Mrs X also complains that she has had to pay for private assessments and provision, pay for legal fees and the issue has caused her distress.
What I have investigated I have investigated Mrs X complaint that her son did not receive a full time education from January 2021, when he was of compulsory school age, until July 2021. The final section of this statement contains my reason(s) for not investigating the rest of the complaint.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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) We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
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.
How I considered this complaint
I read the papers put in by Mrs X and discussed the complaint with her.
I considered the Council’s comments about the complaint and any supporting documents it provided.
Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
The law A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
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).
Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013) Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6)) 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) Key facts Y started primary school in September 2020 and became of compulsory school age on 1 January 2021.
The Council issued an EHC plan on 8 June 2021. This named his existing school for the remaining half term, with a special school named for September 2021.
Mrs X and the Council attended mediation in September 2021. The Council issued an amended EHC plan in October 2021 naming the same special school as the previous plan. Mrs X appealed to the SEND tribunal about the contents and provision in the EHC plan.
Mrs X started action to make a Judicial Review against the Council in January 2022. The Judicial Review was resolved by consent order on 8 June 2022.
My analysis As I have outlined in the final section of this statement, most of Mrs X’s complaint is outside the Ombudsman’s jurisdiction. However, Mrs X’s complaint that Y was only in school for about 2 hours per day from Jan 2021 to July 2021 is within the Ombudsman’s jurisdiction.
The Council has explained that ‘the hours of attendance at school were reduced after it became clear Y was struggling and displaying considerable distress around toileting. Accordingly, the reduced attendance was done in his best interests so he could receive an efficient full-time education suitable to his age, ability, aptitude and SEN’.
Mrs X explained that Y was only in school for 2 hours a day and she was often called in to school to help with toileting, as he became distressed if school staff tried to help. This meant she could not work.
I understand Mrs X’s complaint, however Y was five years old and all accept he was not coping in school. The Ombudsman cannot look at the actions of school, only the Council. At that time, the Council was carrying out an EHC needs assessment. If the Council had referred Y to an alternative provision, at age five, its unlikely this would have been more than 2 hours a day play based provision. So, I cannot see evidence that the Ombudsman could find fault with the Council’s decision that 2 hours a day at school was in Y’s best interests if a full day was causing him distress while it assessed his needs for an EHC plan.
The Council issued the EHC plan on 8 June 2021. The Ombudsman would normally allow a school/Council at least 4 weeks to put the provisions in place and so it was unlikely they would have been able to do this before the end of the summer term in mid July.
Final decision
I have completed my investigation of this complaint. This complaint is not upheld, as I have found no evidence of fault in the part of the complaint that is within the Ombudsman’s jurisdiction.
Parts of the complaint that I did not investigate I have not investigated Mrs X's complaint about lost education when Y was not of compulsory school age before January 2021.
Mrs X has already used an alternative remedy, Judicial Review, to pursue her complaints against the Council. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916) So, the Ombudsman cannot look at the matters involved in the Judicial Review which were: Failure to provide elements in the EHC plan such as Occupational Therapy, Speech and Language Therapy, Educational Psychologist input and teaching assistants.
A change of school.
The Council’s stage 2 investigation of Mrs X’s complaint.
Mrs X’s costs of getting independent reports to secure the provisions in the EHC plan and her legal costs.
Investigator's decision on behalf of the Ombudsman