Summary: We will not investigate this complaint about the Council’s decisions to refuse alternative provision and to refuse an Education, Health and Care Needs Assessment. We are unlikely to find fault with the former, and Miss X has used her right of appeal about the latter. We cannot investigate the school’s threat of attendance enforcement action.

The complaint

1. Miss X complains the Council refused to provide alternative provision when her child, Y, stopped attending school. Miss X says the Y’s school then threatened them with enforcement action to get Y back in school.
2. Miss X complains the Council refused to do an Education, Health and Care Needs Assessment (EHCNA).
3. Miss X says actions have impacted her family’s mental health and wellbeing. She wants the Council to agree provide alternative provision.
4. Miss X also complains about delays in the Council’s complaint handling and correspondence.

Back to top

The Ombudsman’s role and powers

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 further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
8. 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)
9. 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.
10. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207, the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.

Back to top

How I considered this complaint

11. I considered information provided by the complainant and the Council.
12. I considered the Ombudsman’s Assessment Code.

My assessment

13. We are also not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong.
14. The Council considered Miss X’s request for alternative provision, along with the evidence she provided in support of the request and decided the case did not meet the threshold for alternative provision under Section 19. The decision is a matter of professional judgement. I appreciate Miss X disagrees with the Council’s decision and questions the way it was reached, but I have seen no evidence of fault affecting the decision. We therefore cannot question it.
15. Miss X says Y’s school threatened her with fines and other enforcement action if Y did not return to school. The restriction in paragraph six applies and we cannot investigate this.
16. As well as seeking alternative provision, Miss X asked the Council to do an EHCNA, but the Council refused. Miss X used her right to appeal this refusal with the Tribunal. Miss X then brought her complaint to us. Since Miss X complained to us, the Council has agreed to do an EHCNA. An investigation now is unlikely to lead to a different outcome.
17. The Ombudsman cannot investigate a matter about which an appeal has been made. This means we cannot take a view on whether the Council was at fault for its initial decision to refuse an EHCNA. The courts have held that the restriction set out above also applies to all matters relating to the appeal, including a Council’s actions during the period between the appeal being lodged and the process ending. Furthermore, the Council now has decided to issue an Education, Health and Care Plan for Y. When the Council issues it, if Miss X is unhappy with the provisions named within the plan, she will have the right to appeal to the Tribunal.
18. It is not a good use of public resources to investigate complaints about complaint procedures, if we decide not to investigate the substantive issue.

Back to top

Final decision

19. We will not investigate Miss X’s complaint because we are unlikely to find fault with the Council for not providing alternative provision, and we cannot investigate the refusal to assess or actions taken by the school.

Back to top

Investigator's decision on behalf of the Ombudsman