Summary: We cannot investigate part of Ms X’s complaint about the decision not to make an Education, Health and Care Plan for her child because she appealed to the SEND Tribunal. We will not investigate Ms X’s complaints about arranging alternative provision or school transport for her child because there is insufficient evidence of fault.

The complaint

1. Ms A complains the Council:
1. failed to organise alternative education for her child, Z, when they became unable to attend school;
2. refused to make an Education, Health and Care (EHC) Plan for Z; and
3. refused transport for Z to and from her school.
2. Ms A says the matter caused her frustration and distress.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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.
5. 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)
6. 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))

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How I considered this complaint

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

Decision not to make an EHC Plan

9. The Council conducted an EHC needs assessment of Z. It decided not to make an EHC Plan for them. Ms X appealed the decision to the SEND Tribunal. The Tribunal decided Z did not require an EHC Plan.
10. We cannot investigate this complaint because Ms X used her right to appeal to the SEND Tribunal, and the law says we cannot investigate matters decided by the Tribunal under its own powers.

Alternative Education

11. Ms X explained Z was unable to attend their school due to anxiety and bullying. Ms X believed the Council should have arranged alternative education for Z.
12. In its response to Ms X’s complaint, the Council explained actions it had taken to reintegrate Z into their school. This included an offer of 1:1 tutoring at school, support plans/ meetings, general guidance, discretionary taxi transport, and engagement with professionals to understand Z’s needs.
13. The Council concluded the school was available and accessible to Z, and that it did not owe an alternative education duty.
14. There is insufficient evidence of fault in the Council’s actions to warrant an investigation by the Ombudsman, and so we will not investigate this complaint.

School Transport

15. Ms X later moved Z to a new school. The school was approximately 20 miles from the family home. Ms X asked the Council to provide transport, but it refused.
16. In the Council’s stage two appeal response, it explained how it made the decision. It explained how it considered Z’s circumstances, the evidence Ms X provided, and the evidence of professionals. However, the Council decided Z did not meet the standard eligibility criteria for transport because they did not attend their nearest school. The Council considered its discretionary powers to provide transport in any case but decided not to and recorded its reasons.
17. The Ombudsman is 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,
18. There is insufficient evidence of fault in how the Council considered Ms X’s appeal. Consequently, we will not investigate this complaint.

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Final decision

19. We cannot investigate part of Ms X’s complaint because she appealed to a tribunal. We will not investigate the remainder because there is insufficient evidence of fault.

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Investigator's decision on behalf of the Ombudsman