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Derby City Council (21 018 233)

Category : Education > Alternative provision

Decision : Closed after initial enquiries

Decision date : 10 Apr 2022

The Ombudsman's final decision:

Summary: We will not investigate this complaint about the Council’s decision not to issue an Education Health and Care plan. This is because it is reasonable for Mrs X to appeal to Tribunal.

The complaint

  1. Mrs X says the Council has not fully assessed her son’s special education needs and this has meant her son has been absent from school. Mrs X says this has caused her distress and prevented her son from getting an education. Mrs X wants the Council to complete an Educational Health and Care (EHC) plan.

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The Ombudsman’s role and powers

  1. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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)
  2. 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

  1. I considered information provided by Mrs X and the Council.
  2. I considered the Ombudsman’s Assessment Code.

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My assessment

  1. Mrs X said Y stopped attending school in October 2021. She said he has special education needs. Mrs X asked the Council to assess Y for an EHC plan in December 2021. The Council decided not to issue a plan in February 2022 stating his needs could be met in his existing school. Mrs X subsequently complained to the Council about its failure to provide alternative provision.
  2. The Council’s decision not to issue Y an EHC plan is appealable to the SEND Tribunal. It is reasonable for Mrs X to use this right of appeal therefore this complaint is outside of our jurisdiction. The Council’s decision not to provide Y alternative education is based on its decision not to issue Y an EHC plan. This matter is not separable from the Council’s decision not to issue a plan. Y still has a place available at the school.

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Final decision

  1. We will not investigate this complaint about the Council’s assessment of a child’s special educational needs. This is because Mrs X has a right of appeal to Tribunal and it would be reasonable to expect her to use this if she is unhappy with the Council’s decision not to issue an EHC plan.

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Investigator's decision on behalf of the Ombudsman

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