Summary: We will not investigate Mr X’s complaint that the Council failed to put in place suitable full-time education for his son Y between December 2022 and April 2024. This is because the Council considers Y’s school suitable to meet his special educational needs and his non-attendance at school is a consequence of its decisions firstly to refuse to carry out an assessment of his needs and then to name the school in his Education, Health and Care Plan.

The complaint

1. The complainant, Mr X, complains the Council refused to carry out an Education Health and Care (EHC) needs assessment for his son, Y. It later agreed to carry out an assessment but named a school in Y’s EHC Plan which Mr X says could not meet his needs. He says the Council failed to provide Y with suitable full-time education for more than a year.

Back to top

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’.
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. We may decide to investigate if we consider it would be unreasonable to expect the person to use this right but cannot investigate if they have already used it. (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.

Back to top

How I considered this complaint

6. I considered information provided by Mr X and the Ombudsman’s Assessment Code.

Back to top

My assessment

Background

7. Mr X says Y stopped attending school in December 2022 for reasons related to his special educational needs (SEN). His school put in place additional support for him from January 2023 but this did not resolve the problem and Y did not return to school.
8. Mr X asked the Council to carry out an EHC needs assessment in March 2023 but the Council refused his request. He appealed against this decision and the Council conceded the appeal in September 2023 and reversed its decision. It carried out an EHC needs assessment and issued Y’s final EHC Plan in December 2023. But Mr X is not happy with the Council’s decision to name Y’s existing school in the Plan as he says the school cannot meet Y’s needs. Y remains out of school and Mr X says he is not receiving a suitable full-time education.
9. The courts have established that if someone has appealed to the Tribunal, or if they had a right of appeal to the Tribunal which it would have been reasonable for them to use, we cannot investigate any matter which was part of, connected to, or could have been part of, an appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
10. This means that if a child or young person is not attending school and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision or alternative educational provision.

Analysis

11. Because Mr X appealed against the Council’s decision not to carry out an EHC Assessment we cannot investigate any complaint about this decision. We will not investigate any complaint about the content of the final EHC Plan and specifically the Council’s decision to name Y’s existing school as this also carried a right of appeal which it would have been reasonable for Mr X to use.
12. We also cannot investigate any complaint about the consequences of these decisions, which is that Y remains out of school. This is for the reason set out at Paragraph 10.
13. The Council’s view throughout has been that Y’s school is suitable to meet Y’s SEN and his non-attendance at school is the result of Mr X and Y’s disagreement with this decision. Had they wanted to challenge the decision it would have been reasonable for them to use. The school put in place alternative provision for Y while he remained out of school and the Council agreed to additional provision following Mr X’s threat to take it to court.
14. We cannot recommend a remedy for Mr X or Y in this case because the injustice they claim is too closely linked firstly to the decision not to carry out an assessment and then to the decision to name Y’s current school in his EHC Plan.
15. We could not therefore achieve any worthwhile outcome for Mr X by investigating the complaint further.

Back to top

Final decision

16. We will not investigate this complaint. This is because the injustice Mr X claims is too closely related to the Council’s decisions. Mr X appealed against the initial decision not to carry out an assessment and it would have been reasonable for him to appeal against the decision to name Y’s current school in his EHC Plan.

Back to top

Investigator's decision on behalf of the Ombudsman