Summary: We will not investigate Mrs X’s complaint about the Council’s failure to meet her son Y’s special educational needs. This is because her complaint about the lack of educational provision and support falls outside our jurisdiction and the Council has properly considered whether to make other arrangements for him while he is out of school. There is no evidence to show any delay in completing Y’s annual review caused Mrs X or Y significant injustice.

The complaint

1. The complainant, Mrs X, complains the Council has failed to provide her son, Y, with full-time education or the provisions set out in Section F of his Education Health and Care (EHC) Plan. She also complains the Council failed to carry out a review of the EHC Plan, issued in December 2022, within 12 months.

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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 do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), 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 Mrs X and the Ombudsman’s Assessment Code.

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My assessment

7. Mrs X has complained to us previously about the Council’s failure to provide her son with education and to meet his special educational needs. We declined to investigate this aspect of her complaint because it was too closely related to her concerns about the content of Y’s EHC Plan, which carried a right of appeal to the SEND Tribunal.
8. The SEND Tribunal has now considered Mrs X’s appeal and named a school Mrs X does not believe is appropriate to meet Y’s needs. Mrs X says Y is unable to attend the named school and that due to illness he has not been able to attend school or access the provision set out in his EHC Plan as required to meet his special educational needs.
9. We cannot investigate the Council’s failure to provide Y with education since it issued his EHC Plan in December 2022. This is because the school named in the EHC Plan is available to Y and would, in the opinion of both the Council and the Tribunal, be able to provide the provision required to meet his special educational needs. I appreciate Mrs X disagrees with this but she has used her right of appeal against the content of the EHC Plan and the issue of whether the school is suitable one which was considered as part of her appeal.
10. Mrs X has asked the Council to make alternative arrangements for Y because he is too ill to attend the school named in his EHC Plan and complains it has ignored the evidence she provided to support her request. But it is clear the Council has considered the request and taken account of the information Mrs X provided. It does not agree the evidence shows Y is unable to attend the school but this is different from ignoring it. I have seen nothing to show the Council’s decision was affected by fault and I cannot therefore question it; we are not an appeal body.
11. While Mrs X also complains about the Council’s failure to carry out an annual review within 12 months of Y’s EHC Plan from December 2022, I do not consider this caused Mrs X or Y any significant injustice. This is because Mrs X’s appeal to the SEND Tribunal considered Y’s needs and named a school it felt suitable to meet his needs within 12 months of the original EHC Plan; this is in practice little different to a review carried out by the Council and we could not say, on balance, that any review by the Council would have led to a different outcome.
12. The Council has in any event now agreed to carry out an early review and this will consider whether to make changes to the EHC Plan approved by the Tribunal. Any review will consider Y’s needs and whether the Council should name a different school to the one detailed in his current EHC Plan.

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Final decision

13. We will not investigate this complaint. Mrs X’s concerns about the lack of education and provision to meet Y’s special educational needs relate to the suitability of the school named in his EHC Plan and this is an issue which falls outside our jurisdiction. There is not enough evidence of fault in the way the Council considered whether to make alternative arrangements for Y while he was out of school or to show its failure to carry out an annual review within 12 months of issuing the EHC Plan caused Mrs X or Y significant injustice.

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Investigator's decision on behalf of the Ombudsman