Summary: We will not investigate this complaint about the educational placement the Council named in an Education, Health, and Care Plan. Mrs X had a right to appeal this decision, and it would have been reasonable for her to use it.

The complaint

1. Mrs X said her son has missed education over a long period of time and she said this is because the school the Council named in her son’s Education, Health, and Care (EHC) Plan, cannot meet his needs. Mrs X said this has caused her and her family stress and anxiety and she now wants the Council to agree a different school, that is more suitable.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference, or review 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 use this right. (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.
5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)

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How I considered this complaint

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

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My assessment

8. Miss X is the parent of Y. Y is a child with Special Educational Needs and an EHC Plan, which the Council issued in 2021. At that point it named School A as the educational placement.
9. In late 2023, the Council reviewed Y’s EHC Plan and in January 2024, it decided not to amend Y’s EHC Plan. It sent Mrs X a decision letter, and set out her right to appeal this decision.
10. Mrs X complained more broadly about the Council’s decision not to name an alternative school and highlighted Y’s school were not supporting him while he was not attending school. The Council investigated and agreed it would look to ensure Y’s school made more support available.
11. We will not investigate Mrs X’s complaint about the Council’s decision not to name Mrs X’s preference as an educational placement. Mrs X had a right of appeal to the SEND Tribunal about that decision, and it is reasonable to expect her to have used this right. In any case, we cannot direct the Council to change an EHC Plan, including the name of the educational placement. Only the SEND Tribunal or the Council can do this.
12. The consequence of the Council’s decision to name School A in section I of Y’s EHC Plan, which was appealable to the SEND Tribunal, is Y did not receive their placement-based section F provision.
13. If a person with an EHC Plan is not attending an educational setting, and we decide the reason for non-attendance is linked to, or is a consequence of, a disagreement about the educational placement in the EHC Plan, we do not investigate a lack of special educational provision (SEP), or alternative educational provision, where there was a right of appeal to a Tribunal and it was reasonable to use that right.

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Final decision

14. We will not investigate Mrs X’s complaint because she has a right of appeal, and it is reasonable to expect her to use this.

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Investigator's decision on behalf of the Ombudsman