The Ombudsman's final decision
Summary: We will not investigate this complaint that the Council has reneged on an agreement to name a specific school in the complainant’s son’s Education Health and Care Plan. This is because there is insufficient evidence of significant injustice caused by the Council’s actions to warrant our involvement.
The complaint
The complainant, who I will refer to as Ms B, complains that the Council has reneged on an agreement it made to name her referred school in her son’s Education Health and Care Plan (EHCP) for phase transfer.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Ms B’s son has special educational needs and an EHCP. In 2021 Ms B and the Council came to an agreement in the course of her appeal to the First-tier Tribunal (Special Educational Needs and Disability) about the EHCP’s content. The agreement was set out formally in a Consent Order. Under the terms of the Order Ms B’s son would transfer to a named special school at the beginning of Year 7 in September 2023. Ms B says, and I have no reason to doubt, that without this agreement she may have continued with the appeal.
In 2022 the Council has said the terms of the Consent Order are not binding. It says it has taken legal advice and has decided to apply its usual procedures when reviewing the EHCP before phase transfer. That being the case, it will not guarantee a place at the named school.
Ms B complains that the Council gave her misleading information. She believed the Consent Order would be implemented but now has to wait to find out whether her son will transfer to the school.
I have taken no view on whether the Consent Order was legally binding. This is not a matter for the Ombudsman and could only be definitively determined in court. I note however that the wording of the Order is clear and is not in any way conditioned. Ms B was entitled to rely on it. If the Council agreed to the Order in the knowledge that it was not binding, it seems to me that it would have been appropriate for it to make that clear.
That said, there are insufficient grounds for the Ombudsman to investigate Ms B’s complaint. As I understand it, the Council must ensure the EHCP is amended as necessary ready for phase transfer by February 2023. It is only at that point that it will become clear which school is named. Until then, we cannot say the Council’s actions have caused Ms B a significant injustice. If the Council declines to name the school in the ECHP, Ms B’s right to appeal to the Tribunal will be engaged. Where appeal rights exist, the Ombudsman normally expects them to be used and we would be unlikely to intervene.
Final decision
We will not investigate Ms B’s complaint because there is insufficient evidence of significant injustice caused by the Council’s actions to warrant our intervention.
Investigator's decision on behalf of the Ombudsman