Summary: We will not investigate this complaint that the Council has failed in its duty to provide suitable alternative educational provision for the complainant’s daughter. There is insufficient evidence of fault on the Council’s part to warrant investigation.

The complaint

1. The complainant, Mrs X, complains that the Council has failed in its duty to provide suitable alternative educational provision for her daughter, who cannot 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 effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I considered information provided by the complainant.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Mrs X says her daughter is unable to attend school for mental health reasons. She contends that the Council’s duty under section 19 of the Education Act 1996 to make alternative provision is engaged. She complains that it has failed to do so. She argues that the Council’s use of its own guidance to inform its decision-making is unlawful.
6. The correspondence Mrs X has provided shows that she made two requests for alternative provision. On each occasion the Council considered the matter and took the view that appropriate provision could continue to be made by Mrs X’s daughter’s school. It therefore found that its section 19 duty was not engaged.
7. The Ombudsman will not investigate Mrs X’s complaint because there is insufficient evidence of fault on the Council’s part. It is not the Ombudsman’s role to decide whether the section 19 duty is engaged. That is a matter for the Council. Our role is to consider whether there is evidence of fault in the way the Council made its decision and, if so, whether that fault was material to the outcome.
8. In this case, the correspondence shows that the Council has properly considered Mrs X’s requests for alternative provision. Its decisions are clearly set out and appear reasonable in the circumstances of the case. Without evidence of fault in the way the Council made its decisions, the Ombudsman cannot criticise them or intervene to substitute an alternative view.
9. The Council is entitled to draw up its own guidance to help officers implement its legal duties and the Ombudsman will not criticise it for doing so. If Mrs X believes the way it has done so here is unlawful she may wish to test the matter in court. There are no grounds for us to intervene.

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Final decision

10. We will not investigate Mrs X’s complaint because there is insufficient evidence of fault on the Council’s part.

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Investigator's decision on behalf of the Ombudsman