Summary: We will not investigate this complaint that fault on the Council’s part has delayed the complainant’s admission to an appropriate school. This is because we could not achieve anything significant by doing so.

The complaint

1. The complainant, who I will refer to as Miss B, complains that fault on the Council’s part has delayed her daughter’s admission to her preferred school, and that its response to the matter has not provided appropriate restitution.

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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 may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)

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How I considered this complaint

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Miss B’s daughter has special educational needs and an Education Health and Care Plan (EHCP). She was due to transfer between phases of education in September 2022 so, in 2021 the process of amending her EHCP to name an appropriate school began.
8. Miss B requested that the Council name a specific specialist school. She says the Council initially failed to place the request before its complex needs panel. When it eventually did so, the panel declined the request as the available places had been filled. As a result, the mainstream school named on the ECHP is, in Miss B’s view, not appropriate for her daughter and she has used her right to appeal to the SEND Tribunal. The hearing has been scheduled for February 2023 meaning that, even if the appeal is successful, Miss B’s daughter will have missed out on a place at her preferred school for more than a term.
9. In response to Miss B’s complaint, the Council has accepted that it was at fault. It has apologised and undertaken to present the application to a future meeting of the complex needs panel. In recognition of its fault, it has also offered a payment of £400. Mrs B does not believe the Council’s response is appropriate. She wants her request to be prioritised and to be reviewed alongside the cases of the children who did receive a complex needs placement at the school.
10. The Ombudsman will not investigate Miss B’s complaint because we could achieve nothing significant by doing so. It is not for us to take a view on whether the provision set out in Miss B’s daughter’s EHCP is appropriate. Miss B has used her right to appeal to the SEND Tribunal and this places all matters relating to the EHCP’s content outside our jurisdiction. We cannot therefore find that the fault on the Council’s part has caused Miss B’s daughter to miss out on appropriate provision.
11. However, it is the case that councils should ensure that, where a child is approaching phase transfer, the review of their EHCP is finalised in time to ensure that all issues, including appeals to the SEND Tribunal, can be completed in time for the start of the school year. That did not happen in this case, and the Council accepts that this amounts to fault. Where a complaint has been upheld, the Ombudsman will not normally intervene. In this case, the Council’s response is reasonable in the circumstances and there is nothing to be achieved by the Ombudsman’s intervention.

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Final decision

12. We will not investigate Miss B’s complaint because we would not achieve anything significant by doing so.

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Investigator's decision on behalf of the Ombudsman