Summary: We will not investigate Miss X’s complaint about the Council’s failure to find a suitable educational placement for her son. Miss X had a right to appeal this decision, and it would have been reasonable for her to use it. Nor will we investigate Miss X’s complaint the Council did not secure the provision named in her son’s Education, Health, and Care Plan, because we are satisfied the Council have already remedied any remaining injustice here.

The complaint

1. Miss X said the Council did not do enough to support her and ensure her son (Y) had education provision after it issued a final Education, Health, and Care (EHC) Plan when he was not going to school. Miss X said this included:
• Not doing enough to find a specialist placement.
• Not ensuring Y’s school provided any education provision.
• Not replying to her messages and emails about her concerns.
2. Miss X said this meant her son missed education and it has caused her significant stress. She now wants the Council to find a suitable school.

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The Ombudsman’s role and powers

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 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)
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.
6. 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

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

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My assessment

9. Miss X is the parent of Y. Y is a child with Special Educational Needs and an EHC Plan. Miss X said Y was last in school in June 2023.
10. In August 2023, the Council issued a final EHC Plan for Y, and it named a school in section I. Miss X said she had previously told the Council she did not believe this was a suitable placement. After the Council issued a final EHC Plan, Miss X said she tried to get in touch with the Council about Y’s education provision, while he was out of school. Miss X also tried to check with the Council on its progress toward finding a more suitable placement. Mrs X said she got no meaningful response and in February 2024, she made a complaint.
11. In March, the Council replied to her complaint, saying it accepted it had not done enough to ensure Y’s school made provision for Y while he was out of school. The Council offered Miss X a symbolic financial remedy to both recognise Y’s missed education at that point, and to recognise Miss X’s time and trouble she had experienced in her dealings with the Council.
12. In April, Miss X complained again because the Council had not yet resolved her concerns about a placement. In its final response here, the Council upheld her complaint and accepted it had not done enough to ensure it provided education provision. It then made an additional offer of a symbolic financial remedy for the continuing injustice to both Y and Miss X.
13. We will not investigate Mrs X’s complaint about the Council’s decision not to name a suitable education 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.
14. The consequence of the Council’s decision to name the placement 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.
15. 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.
16. There are limited circumstances where we may investigate a lack of SEP, and this relates only to SEP that is clearly separable from the matters which could form part of what the SEND Tribunal would consider had an appeal been made.
17. In the circumstances of this case however, we will not consider this matter further. This is because I am satisfied with the actions the Council have already taken to remedy any outstanding injustice, which are as outlined in paragraphs 18 to 20.
18. The Council accepted it had not done enough to ensure Y’s school had secured education provision and it offered a symbolic financial remedy to recognise the injustice caused to Y for missed education provision for three academic terms (from September 2023 until July 2024). The offer is in line with our Guidance on Remedies. Therefore, an investigation is unlikely to achieve any additional outcome.
19. The Council has also offered a symbolic payment in recognition of Miss X’s time and trouble caused by her following up on what the Council was doing. The offer is in line with our Guidance on Remedies. Therefore, an investigation is unlikely to achieve any additional outcome here either.
20. Finally, Miss X wants the Council to name a school and we could not direct it names a specific school, and therefore cannot achieve this outcome for her.

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Final decision

21. We will not investigate Miss X’s complaint because the substantive issues she has complained about have a right of appeal and it would be reasonable to expect her to use it. In respect of all other matters, we are satisfied the Council have taken steps to address the outstanding injustice.

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Investigator's decision on behalf of the Ombudsman