Summary: We will not investigate this complaint about the Council’s decision not to consult with a particular school as part of the Education Health and Care Plan process. This is because there is not enough evidence of fault.

The complaint

1. The complainant, Mrs X, would like the Council to name School Z in her son’s Education Health and Care Plan (EHC Plan). Mrs X complained the Council refused to consult with School Z.

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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. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Parents have the right to request a council names a particular school or college in their child’s EHC Plan. This includes independent schools approved by the Secretary of State under Section 41 of the Children and Families Act 2014. Councils must consult with the school(s) requested and can only refuse a parent’s request under limited circumstances. If a council wants to refuse a parent’s request, the onus is on the Council to prove one of the limited circumstances apply.
8. Where a parent asks for a place at an independent school, and it has not been approved under Section 41 of the Children and Families Act, the process is different. The onus is instead on the parent to prove none of the schools offered by the Council can meet the child’s needs, or the cost of the placement will not constitute an unreasonable public expenditure. The Council still needs to consider a parent’s request, but it does not have to consult with the school.
9. In this case, School Z has not been approved under Section 41 of the Children and Families Act. The Council decided not to consult with the school. It explained to Mrs X this was following two decisions by the SEND Tribunal that a council maintained special school could meet the needs of Mrs X’s son.
10. While I understand Mrs X is unhappy with the Council’s decision, we are not a right of further appeal. We cannot question a council’s decision unless there was fault in the way it was reached. That is not the case here. The Council considered Mrs X’s request and reached a decision the law says it was entitled to take. It explained its decision to Mrs X. We will not therefore investigate because there is not enough evidence of fault for us to question the Council’s decision.

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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.

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Investigator's decision on behalf of the Ombudsman