Summary: We will not investigate this complaint about child protection, Special Educational Needs provision and Z’s Education, Health and Care Plan. This is because Mx Y could have appealed to the First-Tier Tribunal and there is insufficient evidence of fault.

The complaint

1. Mx Y complains about the Council’s handling of their child’s (Z) Special Educational Needs (SEN) provision and Z’s Education, Health and Care Plan (EHCP). Mx Y says the Council failed to respond to their safeguarding concerns, and failed to provide alternative education provision for Z.

Back to top

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 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)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.

Back to top

How I considered this complaint

5. I considered information provided by Mx Y and the Council.
6. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

7. Mx Y raised concerns to the Council about the school named in Z’s EHCP. The school said it was unable to meet Z’s needs, and Mx Y said the Council needed to put alternative educational provision in place. As Z continued to attend the named school, the Council did not consider alternative educational provision as being necessary. This is because Z was not out of education. The Council worked with the school to ensure measures were put in place to continue meeting Z’s educational needs.
8. It is not for the Ombudsman to express a view on whether the Section 19 duty to provide alternative educational provision applies. That decision is for the Council. The question for us is whether there is evidence of fault in the way the Council made the decision not to make alternative provision. I am satisfied the Council did not need to consider alternative provision for Z, because they continued to attend the school. There is insufficient evidence of fault in the Council’s actions, therefore we will not investigate this part of the complaint.
9. Mx Y says the Council failed to safeguard Z, but there is evidence that there has been a multidisciplinary approach in supporting Z. When Mx Y raised their concerns, the Council offered a meeting to provide support and explain the steps involved for considering residential and educational settings for Z. There is insufficient evidence of fault in the Council’s actions, therefore we will not investigate this part of the complaint.
10. Mx Y is unhappy with the school named in Z’s EHCP. They are also unhappy that no school has been named to provide post-16 education. Mx Y can appeal to the First-Tier Tribunal if they disagree with the Council’s decisions regarding Z’s SEN or with the schools named within the EHCP. It is reasonable to expect them to do this, therefore we will not investigate this part of the complaint.
11. Mx Y has also complained about the Council’s complaint handling. However, where the Ombudsman has decided not to investigate the substantive issues complained about, we will not usually use public resources to consider more minor matters such as complaint handling.

Back to top

Final decision

12. We will not investigate Mx Y’s complaint because they could have appealed to the First-Tier Tribunal and there is insufficient evidence of fault.

Back to top

Investigator's decision on behalf of the Ombudsman