Summary: We will not investigate this complaint about the Council’s handling of Mrs X’s daughter’s special educational needs and the delivery of her Education, Health and Care Plan. This is because it is unlikely we could achieve any worthwhile outcome for Mrs X and because it would have been reasonable for Mrs X to appeal against the content of the Plan.

The complaint

1. Mrs X complains the Council went against medical evidence to decline her requests for her daughter’s tutoring to continue through half terms and school holidays. She says the Council failed to provide her with a copy of the medical report and did not share it with the Tribunal as part of her appeal in 2024. She believes her child has missed out on provision she should have received, and says she has spent money on tutoring to make up for the shortfall left by the Council’s decisions.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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

6. I considered information provided by Mrs X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Where a council accepts a child has special educational needs (SEN) which can’t be met through the provision normally available at a mainstream school the council may agree to make an education, health and care (EHC) Plan. The EHC Plan sets out the child’s SEN and the measures necessary to meet them. This may include a different or specialist setting or additional support to help the child succeed, or both. The Council has a duty to secure the provision listed in an EHC Plan.
9. Mrs X’s daughter has SEN and an EHC Plan. She receives education otherwise than at school (EOTAS) due to her SEN. Mrs X says her daughter needs structure and consistency and this means she needs tutoring during school holidays and half term breaks as well as during the normal academic year. This is not explicitly set out in her daughter’s EHC Plan but Mrs X says the Council wrongly refused her requests for additional tutoring despite having agreed to it previously.
10. Mrs X also complains a report the Council obtained in 2024 supported the need for additional tutoring but the Council did not share it with her or with the Tribunal as part of her appeal to challenge the setting named in the EHC Plan. She says the Council has since agreed to provide tutoring over the summer holidays but refused her requests for tutoring during half term breaks.
11. I appreciate how frustrating it has been for Mrs X and Y but the EHC Plan did not explicitly require the Council to provide tutoring during school holidays and the Council exercised its judgement on the point when considering Mrs X’s requests. I have seen no evidence of fault affecting the decisions and we cannot therefore question them.
12. I understand Mrs X’s view that the Council’s decisions to agree to additional tutoring call into question its previous decisions not to providing tutoring, but this does not show fault by the Council in refusing her earlier requests. It is also unlikely we could say that had the Council shared the report she refers to with her and the Tribunal sooner, the outcome would have been different.
13. This is because we cannot determine whether the report was relevant to the Tribunal’s decision or speculate as to whether it may have made a different decision had it received the report at the time. We also cannot say the Council would have reached any different decision about Mrs X’s requests as it clearly knew about the report when deciding on the content of the EHC Plan and considering her requests. The Council has since agreed to additional tutoring over the holidays but it is unlikely we could say the earlier refusals significantly affected Mrs X’s daughter or determine the extent of the impact in order to decide a remedy.
14. Had Mrs X felt the Plan did not properly represent her daughter’s needs or the additional provision she required to manage them, it would have been reasonable for her to appeal at the time. Mrs X exercised her right of appeal to challenge the setting (Section I) and could reasonably have appealed against the lack of any additional tutoring outside term-time (Section F), had she felt this was wrong. Without doing so, delivery of the SEN provision set out in the EHC Plan fell to the Council’s judgement and as set out above I have seen no evidence of fault which would allow us to challenge this.
15. Mrs X is also unhappy with the way the Council dealt with her complaint. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.

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Final decision

16. We will not investigate this complaint. This is because there is not enough evidence of fault by the Council or to show the content of the EHC Plan or decisions about additional tutoring should have been different. It is therefore unlikely we could achieve any worthwhile outcome for Mrs X by investigating further.

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Investigator's decision on behalf of the Ombudsman