Summary: We will not investigate Mrs B’s complaint about her son’s educational provision and his Education Health and Care Plan. The law prevents us from investigating what happens in schools, and it would have been reasonable for Mrs B to use her appeal rights.

The complaint

1. The complainant, who I will refer to as Mrs B, complains that the Council has failed to ensure appropriate educational provision for her son, and has failed to issue him with an Education Health and Care Plan (EHCP) which meets his needs.

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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’))

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How I considered this complaint

5. I have considered what Mrs B has said in support of her complaint and relevant information provided by the Council. I have also considered Mrs B’s response to a draft of my decision.

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What I found

6. Mrs B’s son has special educational needs. The Council issued an EHCP in June 2020.
7. Mrs B complains that her son’s school failed to meet his needs in the period before he was assessed for an EHCP. Specifically, she complains that he was unreasonably given a part-time timetable, inappropriately placed at a Pupil Referral Unit (PRU), and that the school failed to advise her to apply for an EHCP. She is also critical of the actions of the PRU.
8. Mrs B believes the Council should have taken action to ensure her son had access to full-time education, and should have acted when the school inappropriately sent him to the PRU.
9. Mrs B also complains that the EHCP the Council has issued is not fit for purpose. She believes the provision set out does not meet her son’s needs and an alternative placement should have been identified for him.
10. We will not investigate Mrs B’s complaint. By law, the Ombudsman cannot consider what happens in schools. This includes how special educational needs are addressed for pupils without EHCPs. Whether the school and the PRU provided appropriate education is not a matter for the Ombudsman. All actions of the school and the PRU fall outside our jurisdiction. We cannot therefore consider these events or how the Council reacted to them. There is no discretion available to us on this matter.
11. Neither will we consider Mrs B’s complaint that the EHCP is not fit for purpose. The content of an EHCP is not a matter for the Ombudsman. This includes the school it names, or other educational provision set out in it. Mrs B has the right to appeal to the SEND Tribunal about the content of the EHCP, and it would have been reasonable for her to do so.
12. I understand the EHCP is being reviewed, and Mrs B will again have the right to appeal if she is unhappy with the outcome. This is the recourse available to her if she feels the provision the Council has made is not appropriate for her son. Where appeal rights are available, the Ombudsman normally expects them to be used.

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Final decision

13. We will not investigate this complaint. This is because we cannot consider what happens in schools, and it would have been reasonable for Mrs B to use her right to appeal against the content of her son’s EHCP.

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Investigator's decision on behalf of the Ombudsman