Summary: We will not investigate this complaint about the education provision in place for Mrs X’s child. This is because she used her right of appeal to the SEND Tribunal.

The complaint

1. Mrs X complains that the Council failed to arrange full time education provision for her child Y.

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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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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)
6. 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

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

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My assessment

9. In August 2023, the Council issued an Education Health and Care (EHC) Plan for Y naming School A. Mrs X appealed to the SEND Tribunal on the grounds that the school could not meet Y’s needs. Mrs X also provided the Council with evidence that she felt showed that Y was unable to attend school for medical reasons. The Council issued an amended EHC Plan in January 2024, naming School A for the remainder of the school year and School B from September 2024.
10. There is insufficient evidence of fault with how the Council decided that Y wasn’t medically unfit to attend school. It considered medical and other information before reaching its decision. Whilst Mrs X may strongly disagree with the Council, we can only question a decision if it was affected by fault and I see no evidence of that in this case.
11. I cannot investigate the provision in place for Y during the 2023/2024 school year. This is because it is not separable either from the issues considered by the SEND Tribunal during Mrs X’s appeal to the tribunal against the contents of the first EHC Plan or from her right of appeal against the second plan, which it would have been reasonable for her to have used. The education provision in place for Y is not separable from the school named on the EHC plan and so is not separable from Mrs X’s right of appeal.

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Final decision

12. We will not investigate Mrs X’s complaint because it is about

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Investigator's decision on behalf of the Ombudsman