Summary: We will not investigate this complaint about the Council’s decision not to make alternative educational provision for the complainant’s daughter because there is insufficient evidence of fault on the Council’s part. We cannot investigate her complaint about the Council’s refusal to carry out an Education Health and Care Needs Assessment because she has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, Mrs X, complains that the Council is at fault in declining to make alternative educational provision for her daughter while she has been unable to attend school, and in declining to carry out an Education Health and Care Needs Assessment for her.

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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)
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 Tribunal in this decision statement.

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How I considered this complaint

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

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My assessment

7. Mrs X says her daughter has been unable to attend school since November 2024. She contends that the Council’s duty under section 19 of the Education Act 1996 to make alternative provision is engaged. In her view, her daughter’s diagnoses of Autistic Spectrum Disorder and Dyslexia meet the threshold for alternative provision.
8. The Council has declined Mrs X’s requests for alternative provision. She contends therefore that it is failing to discharge its section 19 duty.
9. It is not for the Ombudsman to express a view on whether the section 19 duty is engaged. That is for the Council. In its responses to Mrs X’s complaints, the Council has set out that it does not accept that Mrs X’s daughter cannot access education provided by the school, or that she cannot be successfully reintegrated. That being the case, it does not agree that the duty is engaged.
10. Mrs X disagrees with the Council’s position. But that does not mean it amounts to fault. The basis on which the Council has reached its view is properly set out in the complaint responses. The conclusions are clear and defensible and there is no evidence of fault in the way the decision was made. Without evidence of fault in the way the Council made its decision the Ombudsman cannot criticise its merits or intervene to substitute an alternative view.
11. Mrs X further complains that the Council has declined to carry out an Education Health and Care Needs Assessment for her daughter. She has appealed to the Tribunal against this decision. The fact that she has used her right to appeal places the matter outside the Ombudsman’s jurisdiction and we cannot investigate it. There is no discretion available to us here.

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Final decision

12. We will not investigate Mrs X’s complaint because there is insufficient evidence of fault on the Council’s part, and Mrs X has used her right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman