Summary: We will not investigate this complaint about alternative educational provision for Miss X’s child. We have previously considered matters up to August 2023, at which point Miss X had a right to appeal to the Special Educational Needs and Disability Tribunal it would have been reasonable to use. The Council could therefore regard the child’s absence from school from then on as unauthorised and it had no duty to consider any request for a further assessment of the child’s needs for six months.

The complaint

1. Miss X said the Council failed to make alternative educational provision for her child when they were unable to attend school.

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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.
7. I considered the Ombudsman’s Assessment Code.
8. I have not considered matters before August 2023 as these were considered in complaint 23 002 892.

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My assessment

9. Complaint 23 002 892 confirmed the Council issued an Education Health and Care (EHC) Plan for Miss X’s child in August 2023. If she felt the provision or setting offered were unsuitable for her child, who had previously been unable to attend school, she had a right of appeal to the SEND Tribunal it would have been reasonable to use.
10. The Council would only have had a duty to make alternative educational provision for Miss X’s child after that if the reason the child could not attend school was unrelated to the suitability of the school. In responding to Miss X’s complaint, the Council referred to several strategies attempted to enable the child to attend the named school. That none of these was successful does not mean the Council had to regard the child as requiring alternative educational provision. It could instead decide the school absences were unauthorised, which its final response confirmed.
11. A parent cannot request a fresh assessment of their child’s needs for six months after an EHC Plan is issued, or an appeal completed. The Council’s final response to Miss X’s complaint stated it had arranged an early review of the child’s EHC Plan at the end of January 2024. That was six months after the final EHC Plan it issued in August 2023. Miss X would need to complain first to the Council about matters since February 2024 before returning to us.

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Final decision

12. We will not investigate Miss X’s complaint because:

• There is not enough evidence of fault in the Council’s actions to warrant our involvement; and
• Miss X also had a right of appeal to the SEND Tribunal in August 2023 it would have been reasonable to use.

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Investigator's decision on behalf of the Ombudsman