Summary: We will not investigate Mrs X’s complaint about the Council not making alternative educational provision for her child. The Council has reached the view this is not necessary, and that the child does not need an Education Health and Care needs assessment. Investigation by us would be unlikely to lead to a finding of fault as the Council is entitled to decide a matter is one of attendance. There is also a right of appeal against the Council’s refusal to assess it would be reasonable for Mrs X to use.

The complaint

1. Mrs X said the Council failed to provide alternative educational provision for her child when unable to attend school as a result of a sexual assault by another pupil.

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The Ombudsman’s role and powers

2. 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 there is not enough evidence of fault to justify investigating.(Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. It is clear there is a fundamental disagreement between Mrs X and the Council about her child’s needs.
9. What is not is dispute is that the child stopped attending school after an incident and that the child’s school has continued to regard the child’s absence as unauthorised.
10. Mrs X’s position is that the child was sexually assaulted by another child and that the school failed to keep the other child away, leading to her child being unable to attend. She says the Council was wrong to refuse to provide a home tutor and to refuse to assess her child for a possible Education Health and Care (EHC) Plan because of autism. She says her child’s condition means she cannot travel to another school.
11. The Council’s position is that its offer of transport to another school was reasonable, and that the child does not need home tuition. It regards the child’s absence as unauthorised as the school has not authorised it. It has pointed out Mrs X has the right to appeal to the SEND Tribunal against its decision not to assess the child’s possible SEN.
12. Were we to investigate, we could not say the Council‘s decision to not offer home tuition was fault. Where a school does not authorise absence, and where it does not find a parental decision to refuse transport to another school valid, the Council can decide there is no duty. It is also entitled to refuse to assess a child’s potential SEN, which is consistent with its view of the child. We could not reach an alternative view, and Mrs X has a right to appeal to the SEND Tribunal to challenge the Council’s view it would be reasonable to use.

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Final decision

13. We will not investigate Mrs X’s complaint because there is not enough evidence of fault by the Council to warrant this.
14. Mrs X also has a right to appeal to the SEND Tribunal against the Council’s decision not to assess her child’s potential SEN.

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Investigator's decision on behalf of the Ombudsman