Summary: The Ombudsman cannot investigate a school’s failure to educate Ms X’s son. We should not investigate the Council’s decision to refuse to provide an Education Health and Care Plan as it is reasonable to expect Ms X to have appealed the Council’s decision to the Tribunal.

The complaint

1. The complainant, whom I shall call Ms X, says the Council has failed to provide her son with an education.

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The Ombudsman’s role and powers

2. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word 'fault' to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6), as amended)
6. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

7. I considered the information Ms X provided with her complaint and the Council’s replies which it provided us. I considered Ms X’s comments on a draft version of this decision.

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What I found

Background

8. Ms X has a son, B, who is now 20, whom she says has extra needs. She says he started School Y’s sixth form in September 2016. She says School Y failed to meet B’s extra needs. It became difficult for B to attend School Y and after a while he stopped going.
9. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
10. Ms X says School Y delayed asking the Council to assess for an EHC Plan. The Council agreed to do so in August 2018. It delayed in assessing and did not provide Ms X with a decision until March 2019. It decided not to provide an EHC Plan. It explained to Ms X she could appeal its decision to the Tribunal, SEND.
11. Ms X says the Council failed to provide B with an education. She says it failed to meet B’s additional needs and make reasonable adjustments. She says its delayed in replying to her complaint.
12. Ms X says she complained to the schools governing body but it failed to reply properly to her.

Analysis

13. We cannot investigate the education School Y tried to provide, its attempts to meet B’s additional needs, or its response to Ms X’s complaint.
14. The Council had no duty to provide an education to B from September 2016 onwards. He was not of compulsory school age.
15. It is reasonable to expect Ms X to have appealed the decision not to issue an EHC Plan to the Tribunal.
16. We should not investigate the Council’s delay in issuing the EHC Plan decision in March 2019. The major injustice caused to Ms X or B would be the loss of education for which they had appeal rights.
17. We will not usually investigate delays in replying to a complaint when we are not investigating the complaint itself.

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Final decision

18. The Ombudsman will not and cannot investigate this complaint. This is because we cannot investigate the school’s provision of education and it is reasonable to expect Ms X’s to have appealed the EHC Plan decision to SEND.

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Investigator's decision on behalf of the Ombudsman