Summary: We will not investigate Mrs X’s complaint about the Council’s refusal to investigate her safeguarding concerns about her son’s school. This is because there is not enough evidence of fault affecting the Council’s decision. We cannot investigate any complaint about the school’s handling of the matter or the actions of school staff as we are barred by law from doing so. The Council acknowledges it delayed in notifying Mrs X of its decision to refuse her application for a personal budget and in responding to her Stage 1 complaint but its offer to pay her £400 provides a suitable remedy for the issue.

The complaint

1. The complainant, Mrs X, complains the Council did not properly investigate her complaint about her son’s (Y’s) school’s handling of a safeguarding matter. She believes the school is unable to meet Y’s needs and wishes to move him to a different school but the Council has so far refused. She has therefore removed Y from the school and is teaching him at home, which she says is affecting her mental health and causing her and her husband financial loss.
2. Mrs X is unhappy the Council sent her personal information to another school as part of the process for deciding which school to name in his Education Health and Care (EHC) Plan and with the Council’s delay in notifying her of its decision to refuse her application for a personal budget to fund Y’s ongoing therapies.
3. Mrs X also complains about the Council’s handling of her complaint.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. 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. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
9. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

10. I considered information provided by Mrs X and the Ombudsman’s Assessment Code.

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My assessment

Safeguarding issue

11. We have no power to investigate the safeguarding issue concerning Y’s school; this is because it relates to actions concerning conduct, management and discipline and such matters are barred from investigation as set out at Paragraph 8. We also cannot look at the school’s handling of Mrs X’s complaint about the safeguarding issue for the same reason. Because these complaints fall outside our jurisdiction we cannot investigate the Council’s handling of Mrs X’s complaint about them. (R (on the application of ER) v CLAE  and London Borough of Hillingdon [2014] EWCA Civ 1407 and R (M) –v- CLAE [2006] EWHC 2847)
12. We can consider the Council’s involvement in the safeguarding issue but this was extremely limited. The school referred the safeguarding incident to the Council’s Local Authority Designated Officer (LADO) but they decided not to investigate as it did not meet the threshold for harm set out at Section 47 of the Children Act 1989. This decision is a matter of professional judgement and I have seen nothing which would allow us to question it. It is clear Mrs X disagrees with the LADO’s decision but on balance it is unlikely we would find fault in the way it was reached.

Mrs X’s request to move schools

13. Mrs X believes Y’s named school is unable to meet his needs and says Y no longer wishes to attend. She has therefore asked the Council to consider changing the school named in Y’s EHC Plan. The Council has considered Mrs X’s request and consulted with other schools but it considers Y’s current school remains the best place for him. If Mrs X disagrees with the Council’s decision it would have been reasonable for her to appeal to the SEND Tribunal. I appreciate Mrs X has concerns about the way the Council reached its decision but such matters fall outside our jurisdiction as they relate to the decision itself, which carries a right of appeal. We cannot therefore consider or provide a remedy for Mrs X’s actions in taking Y out of school to teach him at home.

Information sharing

14. The Council must share information about children with EHC Plans for the purpose of consulting schools about proposed placements and to decide which school is best placed to meet the child’s needs. Mrs X is unhappy the Council sent personal information to a school she had not agreed to be part of the consultation process but the Council has provided clear rationale for its actions. If Mrs X considers the sharing of her personal information and that of her son amounts to a breach of data protection she should report the matter to the Information Commissioner, as they are better placed to consider the issue.

Personal budget delay

15. The Council accepts it delayed in notifying Mrs X of its decision to refuse her application for a personal budget. It has apologised for the delay and offered Mrs X £150 for the issue. The Council’s offer provides a suitable remedy for the avoidable uncertainty caused by its delay and it is therefore unlikely investigation would achieve anything more for her. If Mrs X wishes to complain about the decision itself she would need to complain to the Council in the first instance.

Complaints handling

16. The Council has apologised for its delay in responding to Mrs X’s Stage 1 complaint and for the fact its response did not answer all of her concerns. It has apologised for this and offered Mrs X £250 in recognition of the impact this had on her. The remedy offered by the Council is sufficient for the injustice caused to Mrs X and we would not therefore recommend anything further.
17. While Mrs X remains unhappy with the Council’s responses to her complaints large parts of the complaints relate to matters which are outside our jurisdiction; we cannot therefore look at the way the Council dealt with her complaints about them. The areas which are within our jurisdiction have been responded to by the Council and we have not found fault. It would not therefore be a good use of our resources to investigate this issue separately.

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Final decision

18. We will not investigate this complaint. This is because Mrs X’s concerns about the actions of Y’s school, along with the way the Council considered and responded to these issues, fall outside our jurisdiction. Any dispute over the school named in Y’s EHC Plan is a matter for the SEND Tribunal and any complaint that the Council wrongly shared Mrs X and Y’s personal information is more appropriate for consideration by the Information Commissioner. The Council has provided a suitable remedy for the delay in notifying Mrs X of its decision to refuse her request for a personal budget and for its delay in dealing with her Stage 1 complaint, and there is not enough evidence of fault in the LADO’s decision not to investigate the safeguarding issue.

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Investigator's decision on behalf of the Ombudsman