The Ombudsman's final decision
Summary: We will not investigate this complaint about alternative educational provision and the Council’s actions in assessing Mrs X’s child’s special educational needs. The matters complained of are not separable from the question of the most suitable educational provision for the child, where Mrs X has had rights of appeal to Tribunals that it would have been reasonable to use. There is not enough evidence of fault or injustice in the remaining matters to warrant investigation.
The complaint
Mrs X said the Council has since mid-2021 failed to offer alternative educational provision for her child. She said it failed to follow the correct procedures for finalising Education Health and Care (EHC) Plans, and that an officer advised her to remove her child from a school roll.
The Ombudsman’s role and powers
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.
The courts have held that where someone has appealed to the SEND Tribunal, we have no authority to consider what educational provision should be made for the child concerned. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999); R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407 The Ombudsman investigates 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 may decide not to continue with an investigation if we decide: there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement.
(Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
The correspondence I have seen between the Council and Mrs X shows the issue at the heart of the complaint is a difference of opinion about whether the child requires tuition at home, or if the child can attend a school.
The Council issued two final EHC Plans in mid-2021 and early 2022. Both carried rights of appeal to the SEND Tribunal it would have been reasonable for Mrs X to use. How the Council arrived at the contents of those EHC Plans is not separable from the rights of appeal it would have been reasonable to use.
If Mrs X used her right of appeal in either case, we could not investigate whether the Council should have made alternative educational provision, for the reason given in paragraph 4 above. If Mrs X did not use her right of appeal in one or both cases, it is clear the Council made an offer of education that it felt was suitable. It did this twice, about six months apart. We could not say the Council should then have gone above that by making an alternative offer, even if Mrs X remains of the view that the school named by the Council for her daughter to take effect in September 2022 is unsuitable.
Any suggestion by a Council officer that Mrs X remove her child from a school roll, if it is separable from the matter of the provision specified in EHC Plans, would not have caused sufficient injustice to warrant investigation.
Final decision
We will not investigate Mrs X’s complaint because the matters complained of are likely not to be separable from matters where Mrs X had rights of appeal to the SEND Tribunal it would have been reasonable to use.
Where those matters may be separable, there is not enough evidence of fault by the Council or injustice to Mrs X and her child caused by fault to warrant investigation.
Investigator's decision on behalf of the Ombudsman