Summary: We will not investigate this complaint about how the Council dealt with the education provision for a child with Special Educational Needs. This is because there is insufficient evidence of fault with some of the actions of the Council and other actions are not separable from an appeal made to a tribunal.

The complaint

1. Mrs X complains about how the Council has dealt with matters concerning her child’s education and SEN provision. Mrs X complains about the Council’s decision not to carry out an Education Health and Care (EHC) needs assessment, the education provision named on her child’s final EHC plan and its failure to arrange alternative education provision after her child stopped attending school in October 2021.

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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 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (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 and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mrs X’s child stopped attending school in October 2021 and was educated at home. The Council made enquiries with Mrs X and the school and concluded that Mrs X’s child was electively home educated and that the provision put in place by the family was sufficient.
8. An application for an EHC needs assessment was made but the Council refused to assess. Mrs X successfully appealed this decision to the SEND Tribunal and the Council issued a final EHC plan in June 2022 naming a special school placement. Mrs X disagreed that the placement could meet her child’s needs so appealed to the SEND Tribunal requesting that an Education Other Than at School (EOTAS) package be named in the EHC plan.
9. I cannot investigate Mrs X’s complaint about the Council’s decision not to carry out an EHC needs assessment or the content of the final EHC plan it issued, including the school provision named. This is because both matters have been subject to appeals to the SEND Tribunal which places them out of our jurisdiction.
10. I will not investigate Mrs X’s complaint that the Council failed to arrange alternative education provision from October 2021 until when June 2022, when the Council issued its final EHC plan. This is because there is insufficient evidence of fault. The Council made appropriate enquiries to satisfy itself that Mrs X’s child was electively home educated and that the provision in place was sufficient. Once a child is electively home educated, the primary responsibility to provide a suitable education falls to the parent or carer. The Council is not required to make equivalent provision to that which would be delivered in a school, and it is not reasonable to expect it to do so.
11. I will not investigate Mrs X’s complaint that the Council failed to arrange suitable provision from when the final EHC plan was issued until the end of the 2022 school year. This is because the period in question is a matter of weeks and therefore any injustice caused by not providing education provision during this period is insufficient to warrant investigation.
12. I cannot investigate Mrs X’s complaint that the Council failed to arrange alternative education provision whilst she appealed to the SEND Tribunal. This is because the reason her child did not attend school is because Mrs X considered that it could not meet her child’s needs. This matter is therefore not separable from her appeal to the SEND Tribunal which considered the suitability of the provision named in the Council’s final EHC plan. I do however note that the Council has offered Mrs X a remedy payment for missed provision during this period which is in line with our guidance. Therefore, even if we could investigate provision during this period we would not because doing so would not lead to a different outcome.
13. The Council accepted that it delayed responding to Mrs X’s complaint about these matters. It apologised and offered Mrs X a payment for the time and trouble she has been too. I will not investigate how the Council dealt with Mrs X’s complaint because the Council has taken appropriate steps to remedy the injustice its delays caused to Mrs X and therefore further investigation into this point would not lead to a different outcome.

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Final decision

14. We will not investigate Mr X’s complaint because there is insufficient evidence of fault regarding some matters and others are not separable from her appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman