Summary: We cannot investigate this complaint about the Council’s refusal to issue an Education Health and Care Plan for Y as Mr X has appealed that decision. We will not investigate the Council’s decision that it did not have a duty to provide alternative education because there is insufficient evidence of fault to justify our involvement.

The complaint

1. Mr X complained the Council had not provided an alternative education for his daughter, Y, when she stopped attending school in October 2023. He also complained the Council refused his request for an Education Health and Care Plan (EHC Plan) for Y.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (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 SEND Tribunal in this decision statement.
5. 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.

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How I considered this complaint

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

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My assessment

Needs assessment

8. Mr X asked for an Education Health and Care Plan (EHC Plan) for Y in January 2024. The Council declined to issue an EHC Plan in March 2024. Mr X used his right to appeal to the SEND Tribunal about that decision.
9. We cannot investigate complaints where a person has appealed the issue complained about to the SEND Tribunal. Therefore, we cannot investigate this part of Mr X’s complaint.

Alternative education

10. Mr X asked the Council to provide alternative education for Y in November 2023. There was an exchange of emails between Mr X and the Council, but it did not arrange an alternative education. Mr X complained. He said the Council was under a duty to provide an alternative education because Y was not able to attend school and he provided medical evidence to show she was suffering from anxiety and was waiting for a formal diagnosis of autism and ADHD.
11. In its complaint responses in January and April 2024, the Council said Y had a full-time school place and it was satisfied that was suitable for her. It said the school was taking the steps it would expect to support Y to attend. It said it had not seen evidence that Y was medically unfit to attend school.
12. The Council’s inclusion team became involved in May 2024. It met with Y’s parents and the school. The inclusion team’s records indicate the family were unhappy with the panel’s recommendation in June 2024 that they work with the school to explore how the school could support Y’s attendance because they said the proposed support would not meet Y’s needs.
13. In September 2024, the Council’s panel considered a private educational psychologist (EP) report obtained by the family. The panel said the support the EP recommended had all been or could be offered by Y’s school. It said the school should further explore options to support Y including a mix of online tuition and face-to-face tuition in small groups.
14. The Council has since decided it will issue an EHC Plan for Y.
15. Statutory guidance says schools need to be aware of their responsibilities when mental health issues are impacting on a child’s absence. It says a council does not need to become involved in such arrangements unless it has reason to believe the education being provided by the school is unsuitable. In this case, the Council considered the support Y’s school was offering through the involvement of its inclusion team, panel discussions and in responding to Mr X’s complaint. Its panel noted that the support recommended by the private EP had all been or could be offered by Y’s school. It remained of the view the school was suitable. The Council has considered relevant factors and, although Mr X disagrees with its conclusion, there is insufficient evidence of fault in the decision-making process to justify our involvement. Therefore, we will not consider this part of the complaint further.
16. If Mr X disagrees with the support in the final EHC Plan issued for Y or the school named in it, he will have a further right of appeal to the SEND Tribunal. Only the SEND Tribunal can say whether the support and school named are suitable for Y.

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Final decision

17. We cannot investigate Mr X’s complaint about the Council’s refusal to issue an Education Health and Care Plan because Mr X has appealed that decision. We will not investigate the Council’s decision it was not under a duty to provide an alternative education because there is insufficient evidence of fault to justify our involvement.

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Investigator's decision on behalf of the Ombudsman