Summary: We will not investigate this complaint about alternative educational provision. There is not enough evidence of fault in the Council’s actions to warrant investigation. Investigation of alleged comments made by a Council officer would not be productive, or be likely to find sufficient injustice to warrant our involvement. And Ms X used her right of appeal to a tribunal to challenge the Council’s decision not to issue an Education Health and Care Plan.

The complaint

1. Ms X said the Council has failed to make educational provision for her two children. She said an officer made inappropriate comments about her. She also said the Council refused to issue an Education Health and Care (EHC) Plan for one of her children, but later conceded after she appealed.

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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))
3. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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.

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How I considered this complaint

5. I considered information provided by the complainant, including correspondence from the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The correspondence Ms X provided shows both her children were reported to the Council as being unable to attend school from spring 2022 onwards. The Council’s final letter of response to Ms X’s complaint ran to 21 pages and quoted other correspondence. It is clear from that letter and from Ms X’s complaint that the Council offered alternative educational provision more than once. It is also clear that Ms X said the provision offered was not suitable as her child or children could not engage with it. I also note the letter showed its offers involved more than one location, and a variety of work and activities. The Council’s duty was to offer alternative educational provision. That Ms X did not find it suitable, or that her child or children could not engage does not mean the Council failed its duty.
8. Ms X also said a Council officer told her that the Council used to fine parents like her in the 1970s and questioned why a charity worker had believed her. Investigation of what the officer might have said would not be likely to lead to any worthwhile outcome. This is because it would be a question of one person’s word against another’s, and any injustice caused by any comment would not be sufficient to warrant our involvement.
9. The Council’s decision to refuse to issue an EHC Plan carried a right of appeal, which Ms X used. We cannot therefore investigate the decision that led to the appeal.

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Final decision

10. We will not investigate Ms X’s complaint because:

• There is not enough evidence of fault concerning the offer of alternative education provision to warrant this;
• We would be unlikely to establish if the officer made the alleged comments, and if he did the injustice would be unlikely to be significant enough to warrant investigation; and
• Ms X used an alternative right of appeal to the SEND Tribunal when the Council refused to issue an EHC Plan.

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Investigator's decision on behalf of the Ombudsman