Summary: We will not investigate this complaint about alternative educational provision. Matters before March 2022 are not separable from those that were before a Special Educational Needs and Disability Tribunal, and there is not enough evidence of injustice since then to warrant investigation. We can as yet reach no view on matters in the future.

The complaint

1. Mrs X said the Council failed to make alternative educational provision for her child, who was unable to attend school.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. 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
5. 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 any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

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

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My assessment

8. Mrs X’s child has been out of education since autumn 2021. The period from then until March 2022, when a SEND Tribunal heard an appeal against the content of the child’s Education Health and Care (EHC) Plan, is affected by the jurisdictional exclusion referred to in paragraph 4. This includes any alternative provision.
9. The SEND Tribunal has named a school placement for September 2022 and ordered transition work to take place. The current position is that the Council has agreed two days’ education per week for the child and Mrs X wants more, though she stated in the correspondence she provided that she does not want full-time provision.
10. A duty to arrange alternative educational provision where a child is unable to attend school for reasons of illness starts after 15 school days. The provision should be full-time unless the child is unable to cope with full-time education.
11. In this case, there have been two weeks of school holidays since the ruling. So, the child will have missed eight days’ education by the time the provision starts. That is a short period, and one which does not create enough injustice to warrant investigation.
12. There is, however, the obvious question of how much provision is planned from now on during the summer term. The child has had difficulties with anxiety. And the SEND Tribunal ruling envisages transition work to make sure the placement in September works for the child. The Council originally offered one day per week from late April 2022. It raised this offer to two days per week in response to Mrs X’s views. I note again that Mrs X has not stated she wants full-time provision for her child. It is not possible to know how much provision Mrs X will request and how much the Council will provide during the remaining period of the school year from May to July 2022. I cannot therefore reach any view on this future period, as that would be speculative. Mrs X would therefore be welcome to return to us concerning any dissatisfaction she has with the provision made by the Council during the weeks of the school term that run from 1 May to the end of the school year in July 2022.

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Final decision

13. We will not investigate Mrs X’s complaint because:

• Matters in the period up to March 2022 are ones where the courts have held that we have no authority to consider what educational provision should be made for a child; and
• There is not enough injustice to warrant investigation of the short period where the child has missed education since the Council’s duty began after the SEND Tribunal.

14. Mrs X is welcome to return to us if she is dissatisfied with the provision that is made in the period from 1 May 2022 to the end of the school year in July 2022, provided she does so promptly.

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Investigator's decision on behalf of the Ombudsman