The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the provision of education to his child. It is unlikely we could achieve a significantly different outcome.
The complaint
The complainant, whom I shall call Mr X, says the Council failed to provide his child, Y, with a suitable education from January 2022 to July 2022.
The Ombudsman’s role and powers
We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended) 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) 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.
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide: any injustice is not significant enough to justify our involvement, or we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered information provided by Mr X and the Council.
I considered the Ombudsman’s Assessment Code and Remedies Guidance.
My assessment
Mr X moved his child, Y, to the UK in mid January 2022. He immediately applied for a school place and asked the Council to assess Y for an Education Health and Care Plan (EHC Plan). This sets out the needs of a child with special educational needs and what arrangements should be made to meet them. Mr X says he had prior warned the Council before Y’s arrival, and provided medical evidence in support of his requests.
The Council three weeks later, notified Mr X that it would not assess Y for an EHC Plan. There is a right of appeal to the SEND Tribunal against a decision not to assess. Parents must consider mediation before deciding to appeal. The Council’s notification letter explained he had appeal rights to SEND. It is reasonable to expect Mr X to have appealed if he did not agree with that decision. This means we will not investigate the decision not to assess. The Council’s decision is within the time frame the regulations specify.
In mid February, the Council offered Y a place at a mainstream school.
In March, the Council accepted that it should assess Y for an EHC Plan. It did so, and gave Mr X the final EHC Plan by the end of May 2022. It issued the EHC Plan within the regulation specified timescale.
Mr X says the Council failed to provide Y with an education from January 2022 until the EHC Plan was issued. The Council say it offered some home tutoring in May. It accepts that it delayed in offering education. It has offered to make up for this: £250 for the trouble and distress in the delays caused to securing provision.
Reimbursement of any free school meal entitlement.
Full provision for three full days per week of the school holidays as catchup for the missed provision.
We are unlikely to achieve a significantly different outcome for the delay in providing any education to Y. We have to take into account the tuition offer, the date its accepted Y was not suitable for mainstream school and the holidays in that period. I have also considered our remedies’ guidance.
Final decision
We will not investigate Mr X’s complaint because we are unlikely to achieve a significantly different outcome.
Investigator's decision on behalf of the Ombudsman