Summary: Mrs X complained the Council placed her child in an inappropriate school, and failed to provide the provision set out in her child’s education, health and care plan. Mrs X said this caused unnecessary distress and impacted on her child. We cannot investigate the first part of the complaint because it is outside our jurisdiction. We do not find the Council at fault for the second part.

The complaint

1. Mrs X complained the Council placed her child in an inappropriate school. She also complained the Council failed to provide the provision set out in her child’s education, health and care plan.
2. Mrs X said this caused unnecessary distress. She said the Council knowingly placed her child in a school which could not meet their needs and aggravated their mental health. It also impacted on the wider family. Mrs X said there was an impact on her child of the missed provision.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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 child or young person’s Education, Health and Care plan.
8. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
9. 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.

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What I have and have not investigated

10. There is a right of appeal to the SEND Tribunal against the school or placement named in an education, health and care (EHC) plan.
11. Mrs X complained the Council placed her child, B, in an inappropriate school. Mrs X had the right to appeal the school named in B’s EHC plan. She did not exercise that right.
12. I have considered Mrs X’s reasons for not appealing the named school. I consider it would have been reasonable to expect Mrs X to use that right and appeal the plan. For this reason, I have not investigated this part of the complaint.
13. Mrs X also complained the Council failed to provide the provision set out in B’s EHC plan. She said this had been going on for “years”.
14. As I have said above, we cannot investigate late complaints. I find no good reason why Mrs X did not bring her complaint to us before November 2023. For this reason, I find no good reason to exercise our discretion and look back “years”.
15. B started a new school in early 2023. I find it reasonable to consider the Council’s actions from the time B started at this school.

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How I considered this complaint

16. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
17. I considered the relevant legislation and statutory guidance, set out below.

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What I found

What should have happened

18. A child with special educational needs may have an education, health and care (EHC) plan. This plan sets out the child’s needs and what arrangements should be made to meet them. EHC plans are set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the SEND Tribunal or the council can do this.
19. The council has a duty to make sure the child receives the special educational provision set out in section F of their EHC plan (Section 42 Children and Families Act).
20. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
• check the special educational provision is in place when a new or amended EHC plan is issued, or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and,
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

What happened

21. In early 2023, Mrs X’s child, B, started a new school with an education, health and care (EHC) plan. Mrs X complained to the Council that the school was not delivering the provision set out in B’s EHC plan.
22. In its complaint response, the Council said because of Mrs X’s concerns, it asked the school to confirm it was delivering B’s special educational provision. The school did an audit. The Council said the audit showed the school had put arrangements in place to make sure B got all the required support. The Council found the audit showed all the provision was in place.
23. Mrs X then brought her complaint to the Ombudsman.

Analysis

24. Mrs X complained the Council failed to provide the provision set out in her child, B’s, education, health and care (EHC) plan.
25. As I have said above, we consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect councils to have systems in place to:
• check the special educational provision is in place when a new or amended EHC plan is issued, or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and,
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.
26. In this case, when Mrs X raised concerns about provision at B’s new school, the Council asked the school about it. It also asked the school to provide an audit of the provision in place. This was an appropriate response to Mrs X’s concerns.
27. The Council decided the school’s audit was satisfactory evidence that B’s special educational provision was being provided.
28. I have considered the audit. It is comprehensive and provides a clear and structured breakdown of all the arrangements. It also sets out the additional steps being taken to further support staff. Based on this, I do not find the Council at fault for its decision not to intervene further in the school’s delivery of B’s special educational provision. This was a decision the Council was entitled to make, taking the audit into account.
29. Mrs X specifically complained about three elements in the EHC plan that she said were not being delivered: staff training, B having a safe space to go to, and movement breaks during B’s day.
30. I consider these elements in B’s EHC plan are part of the day-to-day delivery of support in the school. These issues are outside our jurisdiction because we cannot investigate the internal management of schools. These issues would be better placed with the school’s complaints procedure. Mrs X can complain to the school if she wishes.

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Final decision

31. I have completed my investigation. I cannot investigate the first part of Mrs X’s complaint because it is outside our jurisdiction. I do not uphold the second part of the complaint. This is because there is no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman