Summary: We will not investigate Ms X’s complaint about Special Educational Needs provision and the content of an Education, Health and Care (EHC) Plan. There is insufficient evidence of fault and Ms X has a right of appeal to a tribunal if she is unhappy with the content of the EHC Plan.

The complaint

1. Ms X complains the Council has not provided her child with suitable education or provisions listed in his Education, Health and Care (EHC) Plan. She says the Council has also refused to change the educational placement named in the plan. She wants the Council to provide her child with suitable education.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. 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))

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How I considered this complaint

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

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My assessment

7. Ms X complained to the Council in January 2024 that her child, Y, was struggling to attend school and that he was not receiving suitable education.
8. In its complaint responses, the Council said it met with Ms X and the school in February 2024 to discuss her concerns. It said it considered whether it had a duty to provide alternative education for Y at this point, but did not consider the threshold was met. This was because Y was still on roll at the school, the school was making adjustments to encourage him to attend and it was making efforts to put in place alternative arrangements.
9. Between February and May 2024, the Council said it worked with the school to try to reintegrate Y, whilst also arranging some alternative provision. It accepted there was a short delay in the school in submitting a funding request but said this was due to school staff absence. It said it had tried to chase the matter up with the school at the time and once the request was received, it considered and approved the funding without delay.
10. Following an annual review in July 2024, the Council decided to maintain Y’s plan and not to make any amendments to the special education provision or the named educational placement.
11. We will not investigate this complaint. Following Ms X’s complaint, I am satisfied the Council acted appropriately to work with Ms X and the school, to try and reintegrate Y into the school and to put in place some alternative provision. I accept Ms X considers the Council should have done more, however the Council was actively engaging with both Ms X and the school to work to improve his attendance and access to education. There is insufficient evidence of fault to warrant an investigation.
12. Ms X also complained the Council has refused to change the school named in Y’s EHC Plan. We will not investigate this as Ms X has a right of appeal about this to the SEND Tribunal, which it is reasonable for her to use. Only the SEND Tribunal can order a council to change the provision or placement named in an EHC Plan.

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Final decision

13. We will not investigate Ms X’s complaint because there is insufficient evidence of fault and she has a right of appeal to the SEND Tribunal about the decision not to amend Y’s EHC Plan.

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Investigator's decision on behalf of the Ombudsman