Summary: We will not investigate this complaint that the Council is at fault in refusing to make alternative educational provision for the complainant’s son who is out of school. This is because investigation would not find fault on the Council’s part.

The complaint

1. The complainant, Miss X, complains that the Council has unreasonably refused to make alternative educational provision for her son who is out of school, and has refused to escalate her complaint to the second stage of its complaint procedure.

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. 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.

Back to top

How I considered this complaint

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

Back to top

My assessment

7. Miss X’s son has an Education Health and Care (EHC) plan. He is not attending the school named in the EHC plan, which Miss X says is not appropriate for him. She argues that, as her son cannot attend the school, the Council’s duty to make alternative provision under Section 19 of the Education Act 1996 is engaged. She wants a place for her son at an appropriate school and financial redress.
8. The Council has declined to make Section 19 provision because Miss X’s son has a place at the school named in his EHC plan. It points out that the EHC plan was subject to appeal to the First-tier Tribunal (Special Educational Needs and Disability). It argues that the school is appropriate and the Section 19 duty is not engaged. It has responded to her complaint but has declined to escalate it to Stage 2 of its complaint procedure on the grounds that there is no prospect of a different outcome.
9. The Ombudsman will not investigate Miss X’s complaint. It is not for us to say that the school at which Miss X’s son has a place is unsuitable. The content of the EHC plan, including the school placement, has been subject to appeal. Where this is the case, the law prevents us from taking a view on the matter. In these circumstances, we cannot find that the Council’s view that the Section 19 duty does not apply amounts to fault.
10. Where the substantive matter does not fall to be investigated, it is not a good use of public money to investigate how a complaint has been responded to, and we will not do so. That is the case here.

Back to top

Final decision

11. We will not investigate Miss X’s complaint because we would not find fault on the Council’s part.

Back to top

Investigator's decision on behalf of the Ombudsman