The Ombudsman's final decision
Summary: We will not investigate Miss X’s complaint about the Council’s failure to put in place alternative educational provision for her son while he was out of school. This is because the need for the alternative provision stems from Miss X’s disagreement with the Council’s decisions on her son’s Education Health and Care (EHC) Plans and belief that the named school was not suitable. Miss X has appealed against the Council’s decision to name her son’s current school in his October 2023 EHC Plan and could reasonably have appealed against its decision not to amend his Plan as part of a review in May 2023.
The complaint
The complainant, Miss X, complains the Council has not provided her son Y with a suitable full-time education and support for his special educational needs. She says the school named in his Education Health and Care (EHC) Plan is unable to meet his needs and that as a result he has not been to school since July 2023.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended) The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate a complaint if someone has a right of appeal, or 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) 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.
How I considered this complaint
I considered information provided by Miss X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council reviewed Y’s EHC Plan in May 2023 following an annual review meeting by his school (School Z) and decided not to make any changes to it. Because the Council did not amend the EHC Plan Y remained on-roll with School Z, however Miss X says he stopped attending in July 2023 because it could not meet his needs. The Council then reviewed Y’s EHC Plan in October 2023 but re-named School Z as it considered it could still meet his needs.
Miss X’s claim that the Council should have provided alternative provision for Y stems from her belief that the Council’s decisions on his EHC Plans were wrong. The initial period of non-attendance followed the Council’s decision not to amend Y’s EHC Plan in May 2023 and the period after October 2023 followed the issue of the amended EHC Plan.
Miss X did not appeal against the Council’s decision not to amend Y’s EHC Plan in May 2023 but has used her right of appeal against the October 2023 EHC Plan.
Because Y’s non-attendance as School Z is a consequence of the Council’s decisions, each of which carried a right of appeal, we cannot investigate whether the Council should have put in place alternative provision.
Miss X has also complained to the Council about its failure to provide free school meal vouchers. But the Council has explained these are based on a census return submitted by the school, that School Z is an academy and that it is based in another local authority’s area. It has therefore suggested Miss X contact School Z to follow this up, as it is the body responsible. We cannot investigate this point further because the Council is not responsible for providing the free school meal vouchers.
Final decision
We will not investigate this complaint. This is because the reason for Y’s non-attendance at school is a consequence of the Council’s decisions on his EHC Plans. Miss X has used her right of appeal to challenge the Council’s October 2023 EHC Plan and although she did not use her right of appeal against its decision to retain the EHC Plan in May 2023 it would have been reasonable for her to do so.
Investigator's decision on behalf of the Ombudsman