The Ombudsman's final decision
Summary: Mrs Y complains about the Council not providing any alternative education when her daughter was not well enough to attend school. The Ombudsman’s provisional view is we cannot investigate most of the period when Mrs Y’s daughter was out of school. This is because Mrs Y had appealed a decision that was linked to the matter under compliant. We find no fault for the period we can consider.
The complaint
The complainant, whom I shall refer to as Mrs Y, complains: the Council failed to ensure her daughter (Z) received full time education from after she stopped going to school because of her anxiety; when they complained about the Council’s inaction, it selectively quoted from a letter from their GP and then told Z’s school to mark her absence as unauthorised.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these.
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) A child with special educational needs 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. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan. There is also and appeal right about the content of the final EHC Plan, including the school, or type of school, named in the plan.
The courts have decided 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).
If we are satisfied with a council’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)
How I considered this complaint
In considering this complaint I have: looked at Mrs Y’s complaint and the information she sent; made enquiries of the Council and considered its response; considered what the courts have said about the ombudsman’s jurisdiction; and spoken to Mrs Y.
What I found
Legal and administrative background When a child is out of school because of exclusion, illness or for other reasons, councils must arrange suitable alternative education. (Education Act 1996, section 19).
What happened Z is a child of primary school age. In early 2021 she received a diagnosis of autism spectrum disorder. During 2021, Mrs Y has detailed how it was sometimes a struggle for Y to attend school – a mainstream primary school. At a November 2021 special educational needs review, the school noted Z’s attendance over the year had been 78%.
Mrs Y says she had continuing difficulties in getting Z to school from the start of the new school term in January 2022. This was due to Y’s anxiety. From mid-February Z stopped attending school. Z’s doctor provided a letter noting that Z was sometimes not able to attend school due to her anxiety.
A couple of weeks after Z stopped attending, Mrs Y and the school tried to get Y to return to school. Mrs Y says she was too anxious to stay.
The Council says that in March the Council agreed to an increase in the one-to-one support that Z would get in school.
Mrs Y had applied for an EHC plan (see paragraph 4) for Z. On 18 March, the EHC plan was finalised.
on 23 March, Mrs Y wrote to the Council asking it to provide alternative education because Z was not well enough to attend school (see paragraph 8). The Council refused this request. Its view was the school placement was available and suitable for Z On 25 March Mrs Y appealed the EHC plan decision; specifically that it had named a mainstream school as a suitable placement for Z. Her view was Z needed to attend a specialist school.
Over the following months the Council’s early help practitioner was in contact with Mrs Y and the school. Mrs Y complained about the Council not providing alternative education.
In May and June the Council provided its responses to Mrs Y’s complaint. It did not uphold the complaint, as the school had offered support, but Mrs Y had not engaged. So the absence from school was unauthorised.
After the complaint responses, Mrs Y approached the GP who provided another letter. This clarified that Z was completely unable to attend school due to her anxiety, associated with her autism spectrum disorder.
In response to the GP letter, the Council agreed to Mrs Y’s appeal request to change the EHC plan to name a specialist school. It also agreed alternative provision for Z until she could go to school. And a plan to ease her return to school.
Analysis Mrs Y’s complaint is about the Council’s refusal to put in alternative provision for Z’s education, after she could not go to her school, due to her anxiety.
Around a month after Z stopped going to school, the Council decided Mrs Y’s application for an EHC plan for Z. The plan named a mainstream school. Mrs Y appealed the decision, because a mainstream school was not a suitable setting for Z.
The Ombudsman cannot look at any matter where a complainant has used their right of appeal. The Courts have clarified (see paragraph 5) we also cannot look at issues related to the matters under appeal.
With this complaint, Mrs Y’s appeal was that a mainstream school, named in the EHC plan was not suitable for Z. The complaint about the lack of alternative education is linked to that matter. That is because Mrs Y’s view is Z’s anxiety in attending school was because of the type of school she was attending. So case law says we cannot look at the alternative education issues from the date the right of appeal arose until the appeal is heard.
We can investigate the period before the EHC plan decision. But this only amounts to a month, during which time the school and Mrs Y were trying to get Z to attend. The school did not contact the Council until about a week before the EHC plan decision. And Mrs Y did not ask for alternative provision until after that decision. So my provisional view is there was no fault in the Council’s actions during that period.
Draft decision Subject to further comments by Mrs Y and the Council, I intend to make a finding of no fault for the small part of the complaint we can look at.
Investigator's decision on behalf of the Ombudsman