Summary: We will not investigate Ms Y’s complaint. This is because we are unlikely to find evidence of fault by the Council concerning the implementation of an EHC plan and interim provision of education for Ms Y’s daughter. Additionally, Ms Y had appeal rights regarding the content of her daughter’s EHC plan.

The complaint

1. The complainant, whom I shall refer to as Ms Y, says the Council did not take action to secure a place for her daughter (D) in a specialist educational setting. Ms Y says the Council attempted to deviate from agreed actions documented in her daughter’s Education, Health and Care (EHC) plan, causing unnecessary delay, and the family ultimately had to move to secure their desired place for D at their preferred school (School A). Ms Y says D lost four months of education because of the Council’s actions.

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The Ombudsman’s role and powers

2. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating.

(Local Government Act 1974, section 24A(6))

A child with special educational needs may have an 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 First-tier Tribunal (Special Educational Needs and Disability), referred to as the SEN Tribunal in this statement, can do this.

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)

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How I considered this complaint

4. I considered information provided by Ms Y and the Council, which included the Council’s responses to Ms Y’s complaint and copies of the correspondence exchanged between parties.
5. I considered the Ombudsman’s Assessment Code.
6. Ms Y provided comments on a draft version of this decision. I considered her comments before making a final decision.

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My assessment

7. Ms Y complained to the Council about the way it had actioned the contents of D’s EHC plan and allocated a school place. Ms Y said
• The Council changed the EHC plan to name only the mainstream school (School B), removing any mention of a transfer elsewhere, contradicting an agreement made during a mediation meeting;
• The Council delayed in securing a place for Ms Y’s daughter at School A, necessitating a move to another council area; and
• The Council did not provide education for her daughter for a period of 4 months while she waited for a place at School A.
8. The Council investigated Ms Y’s complaint at both stages of its complaints process. In its final response to Ms Y’s complaint, it advised that it had always been the intention for D to move to a specialist school when a place became available and the EHC plan had named School B pending such a transfer. The Council apologised for any suggestion to the contrary, which was the result of a comment that D would have remained at School B if it had been able to meet her needs. As the council apologised for the misunderstanding, there is nothing further for us to add.
9. Although Ms Y says that D did not receive education during the 4 months between the final EHC plan and her admittance to School A, interim provision at School B was available and Ms Y had agreed to it. If she felt this was not acceptable, she had the right to appeal to the SEN Tribunal.
10. Commenting on a draft version of this decision, Ms Y said that the Council had not approached School A about a place for D in 2020, as it had claimed. Ms Y cited as evidence correspondence she exchanged with School A on this subject in early 2021. In response to further enquiries, the Council provided evidence that it sent a copy of D’s final plan to School A, and confirmed her addition to the waiting list, via email in August 2020. The Council has previously explained the delay in allocating a place was caused by a waiting list for places for children in the Council’s area at School A. It was the Council’s responsibility to keep the waiting list and ensure that it operated fairly. There is no fault in it doing so.

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Final decision

11. We will not investigate this complaint. This is because we are unlikely to find evidence of fault by the Council concerning the implementation of an EHC plan and interim provision of education for Ms Y’s daughter. Additionally, Ms Y had appeal rights regarding the content of her daughter’s EHC plan.

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Investigator's decision on behalf of the Ombudsman