Summary: We will not investigate this complaint about the contents of her child’s Education, Health and Care Plan. This is would have been reasonable for Mrs X to appeal to the tribunal.

The complaint

1. Mrs X complains her child (Y) is not attending school as the school named on their Education, Health and Care (EHC) Plan is not suitable for their needs. Y had been attending an alternative provision arranged by the school, but the school says the Council is no longer funding the placement. Mrs X complains the Council has not met its legal duties and says she has experienced delays and a lack of communication.

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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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (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 Mrs X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Councils have a duty to provide the special educational needs provision listed in a child’s EHC Plan. This includes providing a place at the school or type of school named in Section I the Plan (if there is one) and the provision listed in Section F.
8. Where a child is absent from school because of illness, permanent exclusion or ‘otherwise’, the law says councils must make suitable alternative educational provision for them. When considering whether a child is ‘otherwise’ unable to attend school the Council may consider whether the education offered it “reasonable available and accessible” to the child. This is a decision for the Council to make on the facts of the case.
9. Mrs X says Y is out of school because the Council has not provided them with a suitable placement. Y is on the roll of the school named in their EHC Plan but does not attend regularly; Mrs X therefore considers it unsuitable.
10. The school named in the EHC Plan has always remained available to Y and the Council considers it is suitable for them. Mrs X clearly disputes this but it is not for us to decide whether the school named in the EHC Plan is suitable. This is a matter for the Tribunal, so if Mrs X had disagreed it would have been reasonable for her to appeal. There is no cost to lodge an appeal and it is relatively simple to do.
11. The school had put in place some alternative provision while Y was out of school but the Council has not provided funded for this to continue. Mrs X believes this breaches the Council’s duties to provide Y with education or suitable alternative provision. But there was no legal duty for the council to provide this placement as it was not named on the EHC Plan. We cannot therefore say the Council must continue to provide it or that it is at fault for not doing so. The decision not to list the provision in Y’s EHC Plan also carried a right of appeal to the Tribunal and, as with any dispute over the educational setting, I have seen nothing to show it would not have been reasonable for Mrs X to appeal.

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Final decision

12. We will not investigate Mrs X’s complaint. This is because the complaint comes down to a dispute over the contents of Y’s EHC Plan and it would have been reasonable for her to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman