The Ombudsman's final decision
Summary: We find that the Council failed to explain its safeguarding decisions and failed to signpost Mr B to disagreement resolution services regarding his son’s special educational needs. This caused Mr B avoidable frustration and uncertainty. The Council has agreed to apologise and make a symbolic payment to Mr B. It has also agreed to make service improvements.
The complaint
Mr B complains that the Council failed to appropriately respond to his concerns about his son’s education. He says the Council: Wrongly referred him back to the school’s complaints procedure after he had exhausted that process; Failed to respond appropriately to safeguarding concerns, including those arising from a safeguarding referral made by Ofsted; Failed to intervene when he advised that K’s school was not meeting his special educational needs, and communication with the school had broken down; Failed to arrange alternative education when K was not attending school; Failed to make reasonable adjustments for him; Made inappropriate remarks during a meeting in July 2025; and Made a retaliatory safeguarding referral about him in September 2025.
Mr B says these failings caused him and K significant distress and adversely affected K’s education.
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. 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) We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), 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(1), as amended) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I have and have not investigated I have not investigated the complaints included in the last two bullet points of paragraph one. This is because they were not included in Mr B’s original complaint to us and the Council had not been given the opportunity to consider and respond to these matters before the complaint was made to us.
How I considered this complaint
I considered evidence provided by Mr B and the Council as well as relevant law, policy and guidance.
Mr B and the Council have had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
What I found
Law, policy and relevant guidance Disagreement resolution Local authorities must make disagreement resolution services available to parents and young people.
Disagreement resolution arrangements cover all children and young people with special educational needs (SEN), not just those who are being assessed for or have an education, health and care (EHC) plan.
The disagreement resolution service can help resolve disagreements between parents and schools about the special educational provision made for a child.
Use of the disagreement resolution service is voluntary and has to be with the agreement of all parties. The service, while commissioned by it, must be independent of the local authority – no-one who is directly employed by a local authority can provide disagreement resolution services. (SEND Code of Practice, paragraphs 11.6 to 11.8) Alternative education Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1)) The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017) Child protection Councils have a duty to investigate if there is reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm. They must decide whether they should take any action to safeguard or promote the child’s welfare. (Children Act 1989, section 47) Reasonable adjustments Under the Equality Act 2010, councils must make “reasonable adjustments” if the way it carries out its functions places a disabled person at a “substantial disadvantage” compared to someone who does not have a disability.
Background and key events Mr B stopped sending his son, K, to school in June 2025. He considered the school was not providing sufficient support to meet his special educational needs, which was affecting his educational progress and welfare.
Mr B contacted the Council for assistance. He says the Council told him it could not intervene because K did not have an EHC Plan.
Mr B then made a formal complaint to the Council. He said that a request for an EHC needs assessment had been made, but in the meantime, he needed the Council to intervene due to a communication breakdown with the school. He asked the Council to facilitate K’s return to school, ensure the school provided K with appropriate SEN support and provide K with alternative education under section 19 of the Education Act until he was able to return to school.
Mr B made a further complaint following his contact with the Council’s inclusion team. He said that staff had terminated his calls because he wanted to record them, which he considered he was entitled to do. He said that he was a disabled parent and the Council had a duty to make reasonable adjustments for him.
In the Council’s response, it said that as K did not have an EHC Plan in place, the responsibility for meeting his special educational needs remained with the school. It explained that many of his concerns related to decisions and actions taken by the school and advised him to continue following the school’s complaints procedure. It said that if he remained dissatisfied after that process, he may wish to consider contacting Ofsted or seeking support from Walsall SENDIAS.
The Council said it did not consider it had a duty to provide alternative education because it believed suitable education was available for K at school. It said its School Attendance Support Service could help by facilitating a meeting with the school to explore any additional support needed and to develop a plan for reintegration.
In relation to Mr B’s contact with the inclusion team, the Council said that staff were entitled to decline to be recorded. However, it recognised its duties under the Equality Act and said it was happy to offer for all future communication to be carried out by email instead.
In July 2025, the Council wrote to Mr B with its decision to not carry out an EHC needs assessment for K. Mr B is appealing this decision.
Mr B was not happy with the Council’s response to his complaint and escalated it to the second stage of the complaints procedure.
In the Council’s response, it explained that its role had been limited to deciding whether to carry out an EHC needs assessment. It said it could not intervene in the school’s day-to-day decisions, unless a legal or safeguarding threshold was met.
The Council referred to a recent meeting which Mr B had attended, along with representatives from the School Attendance Support Service, the Safeguarding Coordinator for Education, and the headteacher of K’s school. It noted that K had returned to school following that meeting and said attendance would continue to be monitored.
The Council also confirmed that it had referred Mr B’s concerns about the school’s treatment of K, including the concerns raised with Ofsted, to its safeguarding team for consideration.
Analysis School complaints process Mr B says the Council wrongly referred him back to the school’s complaints procedure after he had already exhausted that process.
Mr B told the Council that the school had refused to escalate his concerns to the governing body. The Council should have addressed this, rather than simply directing him back to the school’s complaints procedure.
While this will have caused Mr B some frustration, I do not consider it caused Mr B any significant injustice.
Safeguarding concerns Mr B complained that the Council failed to respond appropriately to safeguarding concerns, including concerns arising from an Ofsted referral.
The Council says Ofsted retained ownership of the safeguarding referral, and its role was limited to providing assurance regarding the school’s safeguarding arrangements. The Council’s records show that it investigated and was assured that safeguarding measures at the school were appropriate and effective.
The Council says it does not share outcomes with either the school or the complainant, and it explained this to Mr B when it spoke to him in March 2025. When Mr B escalated his complaint in June 2025, he asked for a clear account of the action being taken in response to the safeguarding referral made by Ofsted. I consider the Council should have clearly explained its role and conclusions to Mr B when it responded to his complaint. Its failure to do so caused avoidable frustration and uncertainty.
Mr B also raised concerns about the school’s treatment of K directly with the Council. The Council’s safeguarding team decided the concerns did not meet the threshold for safeguarding intervention and referred the matter back to the SEN team.
The Council was entitled to reach that professional judgement. However, it should have written to Mr B acknowledging his concerns and explaining why it did not consider they met safeguarding thresholds. Its failure to do so left Mr B feeling his concerns had not been properly considered.
Special educational support Mr B says the Council should have intervened because K’s SEN needs were not being met and communication with the school had broken down.
Councils have a duty to ensure children with an EHC Plan receive the special educational provision set out in the Plan. At the time, K did not have an EHC Plan and so the Council did not owe him this duty.
However, the SEND Code of Practice requires councils to make disagreement resolution services available for all children with SEN, including those without EHC Plans.
The Council has commissioned such a service, but there is no evidence it told Mr B about it during its handling of his complaints. Given the nature of the dispute between Mr B and the school, I consider it should have provided information about this service in its responses to Mr B's complaints. Its failure to do so caused Mr B frustration and meant an opportunity to resolve his complaint earlier was missed.
Alternative education K did not attend school for around four and a half weeks.
Under section 19 of the Education Act 1996, councils must arrange suitable education for children who, because of illness, exclusion or otherwise, would not receive suitable education without such arrangements.
When deciding whether the duty arises, councils should consider whether the education available to the child is accessible and suitable. Councils are not required to intervene where a child is able to attend school with support.
In the Council’s stage one response, it said that it believed suitable education was available for K. I have not seen any evidence to show how it reached this decision at that time. However, the evidence shows that K returned to school around two and a half weeks later, following a multi-agency meeting. On balance, I consider it likely that suitable education was available to K and the Council did not fail in its section 19 duty.
Reasonable adjustments Mr B says the Council failed to make reasonable adjustments because officers refused to continue telephone calls when he recorded them.
As I understand it, recording a telephone call for personal use is not unlawful. However, Council officers were entitled to decide they did not wish to participate in recorded conversations.
The Council considered Mr B’s request and provided an alternative adjustment, by offering to correspond by email instead.
I recognise that Mr B did not consider email communication suitable. However, the Equality Act 2010 does not require councils to agree to all requested adjustments. The duty is to make adjustments if it considers the way it carries out its functions places a disabled person at a “substantial disadvantage” and if it considers the adjustment is “reasonable”.
I have seen no evidence the Council failed to consider its duties under the Equality Act. It did not consider it reasonable to require its officers to continue calls which were being recorded, and it offered email communication as an alternative arrangement. I have found no evidence of fault here.
Action
The Council has agreed to take the following actions within four weeks of my final decision: Apologise and make a payment of £200 to Mr B to recognise the frustration, uncertainty and avoidable distress caused by the failings identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance when making the apology.
The Council has agreed to take the following actions within eight weeks of my final decision: Ensure information about SEND disagreement resolution services is provided where appropriate; Ensure that when safeguarding concerns are considered but it is decided the threshold for investigation is not met, it clearly records and explains its decision to the person reporting the concern.
The Council should provide us with evidence it has complied with the above actions.
Decision I have completed my investigation and uphold Mr B’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.
Investigator's decision on behalf of the Ombudsman