The Ombudsman's final decision
Summary: Mrs B complained the Council removed her son from his residential placement at short notice without considering the impact on him. We have ended our investigation as Mrs B’s complaint is connected to her appeal to the SEND Tribunal. This places the complaint outside our jurisdiction.
The complaint
Mrs B complained the Council removed her son (Mr C) from his residential placement at short notice without considering the impact on him. She adds the Council failed to consider the judge’s observations. She also says the Council has not provided a clear and transparent reason for its decision and evidenced why a day placement was suitable for Mr C. Finally, Mrs B says Mr C did not receive an education for two months.
Mrs B says the Council’s actions caused her and Mr C unnecessary distress, frustration, uncertainty, and inconvenience.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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.
The courts have established that if someone has appealed to the SEND Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207) We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended) We may investigate a complaint on behalf of someone who cannot authorise someone to act for them. The complaint may be made by: their personal representative (if they have one), or someone we consider to be suitable.
(Local Government Act 1974, section 26A(2), as amended)
How I considered this complaint
I considered information from Mrs B and the Council.
Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Mr C has special educational needs and an Education, Health and Care (EHC) Plan. An EHC Plan sets out a child/young person’s needs and what arrangements should be made to meet them.
The Council issued Mr C with an EHC Plan in February 2022. Mrs B appealed to the SEND Tribunal about the content of the Plan. This included the placement named.
The SEND Tribunal heard Mrs B’s appeal. The judge issued an order in November and directed the Council to amend Mr C’s EHC Plan to include his preference at a college (College A) as a residential placement.
The Council issued Mr C’s amended EHC Plan in December. It also applied for permission to appeal the decision from November.
Mr C started attending College A as a residential student in January 2023.
A judge considered the case in February and decided to set aside the decision from November 2022 and refer the appeal for a new hearing before a new panel. The judge said the parties should reflect on the impact of moving Mr C from his residential placement.
The Council stopped funding the residential placement at College A. Mr C’s last day was in February. The Council provided Mr C with an education at College A as a day student from late April onwards.
A further hearing took place in late-July. The judge issued an order in August and said Mr C should return to College A as a residential student.
Mr C returned to his residential placement at College A in September.
Analysis Mrs B appealed to the SEND Tribunal about the placement listed in Mr C’s EHC Plan. This was an ongoing matter from February 2022 to August 2023. The law says we cannot investigate any matter which was part of, or connected to, the appeal to a tribunal. Mrs B’s complaint about the Council’s failure to consider the impact of removing Mr C from his residential placement, the failure to consider the judge’s view and the failure to evidence why a day placement was suitable is connected to her appeal about the placement in Mr C’s EHC Plan. Therefore, we do not have any jurisdiction to investigate.
The provision in Mr C’s EHC plan is linked to the educational placement he is in. Therefore, we cannot investigate and remedy any missed provision during the appeal period as the failure to provide it is linked to, and a consequence of, Mrs B’s appeal about the placement.
Final decision
I have ended my investigation. Mrs B’s complaint is outside our jurisdiction.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman