Summary: Miss B complained the Council failed to secure alternative educational provision for her son or the provision in his education, health and care plan when he was out of school. She said this put a strain on the family and caused distress. We ended our investigation as the matters complained about were not separable from the SEND tribunal process and therefore out of our jurisdiction.

The complaint

1. Miss B complained the Council failed to secure alternative educational provision for her son or the provision in his education, health and care plan when he was out of school. She said this put a strain on the family and caused distress.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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.
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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).
6. The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin)).

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How I considered this complaint

7. I considered:
• Miss B’s complaint and the information she provided;
• documents supplied by the Council; and,
• relevant legislation and guidelines.
8. Miss B and the Council had the opportunity to comment on a draft decision. I considered comments received before making a final decision.

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What I found

Legislation and Guidance

9. A child with special educational needs (SEN) 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.
10. The EHC plan is set out in sections which include.
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and type of school.
11. The council has a duty to secure the special educational provision in an EHC plan for the child or young person (Section 42, Children and Families Act 2014). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)
12. 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. 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.

What happened

13. This chronology includes key events in this case and does not cover everything that happened.
14. Miss B has four children. C was diagnosed with autism spectrum disorder (ASD) before he started school. In September 2020, C started in reception at School 1.
15. The Council issued C’s final amended EHC plan in February 2022. The EHC plan named School 1. Miss B told the Council C could not access the school. School 1 confirmed it could not meet C’s needs. Miss B appealed to the SEND tribunal against the Council naming School 1 in section I of C’s EHC plan. She also appealed sections B and F.
16. In May 2021, Miss B told the Council C was not attending School 1 and not receiving any speech and language therapy (SALT). The Council consulted with School 2. In June 2022, School 2 responded and said it could meet C’s needs. The Council said it would put alternative provision in place until C transitioned to School 2 or the SEND tribunal finished. Miss B said she did not want C to attend School 2. Miss B sent the Council her preferences for C’s education. The Council agreed to fund alternative provision and SALT through a personal budget.
17. Miss B complained to the Council in July 2022 that:
• C could not access education.
• The Council had not provided C alternative education provision.
• The Council had not secured the provision in C’s EHC plan, namely SALT.
18. The Council responded at stage one in July 2022. It agreed C had not received suitable education since February 2022. It said when Miss B told the Council this was the case in May 2022 it arranged alternative provision. It offered Miss B £400 for each month C missed alternative education and EHC plan provision from February to June 2022. The Council told Miss B it was trying to arrange for C to have a full-time teaching assistant from September to provide SALT support and help him transition to School 2. It advised it was also trying to source a tutor for two hours a day three days a week.
19. Miss B asked the Council to consider her complaint at stage two. She said the stage one response contained inaccuracies and the financial remedy offered was not sufficient.
20. The Council responded in September 2022. It did not uphold Miss B’s complaint about inaccuracies in the stage one response and explained in detail why. It asked Miss B to provide receipts to show she paid more than £400 a month on education for C and it would pay the difference.
21. The SEND tribunal was heard in October 2022. The tribunal issued its order in November 2022.

Analysis

22. Miss B appealed to the SEND tribunal about C’s special educational needs, his special educational provision, and name and type of school, following the Council issuing his final amended EHC plan in February 2022. We have no jurisdiction to investigate matters which have been appealed against to the SEND tribunal.
23. The courts established if someone lodged an appeal to the SEND tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. Therefore, I cannot investigate or seek a remedy for any lack of education or EHC provision after the date the appeal was engaged, because this is linked to the disagreement about the name and type of school.
24. I have discontinued my investigation because the principal matters complained about are not separable from those considered as part of the SEND tribunal process.

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Final decision

25. I have discontinued my investigation. This is because Miss B’s complaint is not separable from her appeal to the SEND tribunal.

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Investigator's decision on behalf of the Ombudsman