Summary: We will not investigate this complaint about funding provided for Mrs X’s child’s special educational needs at an independent school. There is not enough evidence of fault to warrant investigation because the Council also named a maintained school in her child’s Education Health and Care Plan, which means she has a free alternative available, and she had a right of appeal to a Tribunal to remove the Council’s chosen school from the Plan. Mrs X could ask the Council to remove the alternative maintained school and appeal to the Special Educational Needs and Disability Tribunal if it declines to do so. It would be reasonable for her to use this right.

The complaint

1. Mrs x said the Council had provided lower funding to meet her child’s special educational needs (SEN) than for other children at the school with lower needs.

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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.(Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. The child’s Education Health and Care (EHC) Plan states the Council has accepted that Mrs X wishes to place him at an independent school. But the EHC Plan also names a maintained school at which the Council believes the child’s needs could equally be met.
9. I cannot take any view about whether the maintained school could meet the child’s needs. But by also naming the maintained school in Section I of the EHC Plan, the Council has made clear its position that the child is only attending the preferred school as a matter of parental choice. If that school’s fees are greater than the sum the Council has agreed to provide and Mrs X is left with a shortfall, that does not mean the Council has to make up the shortfall. That is because the EHC Plan states she has a free alternative. By naming both schools, the Council did not restrict Mrs X’s right of appeal.
10. Where there is only one school named on a EHC Plan, a council is obliged to meet the cost incurred by the school in delivering the provision. That is not the case here. Mrs X had a right of appeal to the SEND Tribunal against the Council naming the alternative maintained school in her child’s EHC Plan. She retains the right to ask the Council to remove the maintained school from Section I of the EHC Plan to ensure it funds the cost of the placement at her preferred school. If it declines to do so, she has a remedy available that it would be reasonable to use by way of appeal to the SEND Tribunal.

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Final decision

11. We will not investigate Mrs X’s complaint because:

• There is not enough evidence of fault by the Council to warrant investigation, as it named a free alternative in the child’s EHC Plan, opening up Mrs X’s right of appeal to the SEND Tribunal, and removing its obligation to pay the full cost of a placement at Mrs X’s preferred school; and
• It would be reasonable for Mrs X to use the consequent right of appeal to the SEND Tribunal if the Council were now to decline a request from her to remove the alternative school from her child’s EHC Plan.

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Investigator's decision on behalf of the Ombudsman