Summary: We will not investigate this complaint that the Council has failed to make alternative educational provision for the complainant’s daughter while she has been unable to attend school, and has failed to secure the delivery of the provision set out in her Education Health and Care Plan. This is because there is insufficient evidence of fault on the Council’s part, and it would have been reasonable for the complainant to have used his right to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, who I will refer to as Mr X, complains that the Council has failed to make alternative educational provision for his daughter while she has been unable to attend school, and has failed to secure the delivery of the provision set out in her Education Health and Care (EHC) plan.

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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. 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)
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. Mr X ‘s daughter has been unable to attend school full time since September 2023 and has not attended at all since January 2024. Mr X believes that the Council’s duty under section 19 of the Education Act 1996 to make appropriate alternative provision for her is engaged, and complains that it has failed to discharge this duty.
8. Mr X’s daughter has special educational needs. Mr X says the Council issued an EHC plan for her in January 2024 but has failed to secure the delivery of the provision set out in it. He says the Council’s failures have had a detrimental impact on the welfare of his daughter and other family members and that he has been compelled to source alternative provision himself.
9. Mr X wants the Council to provide his daughter with access to both alternative and special educational provision, and contends that this must be in a form which is not conditional on her physical attendance at school. He also wants the Council to reimburse him for costs he incurred in sourcing private provision, and make policy changes.
10. In response to Mr X’s complaint, the Council asserted that its section 19 duty is not engaged. It based this finding on its view that the educational offer available at the school where Mr X’s child remains on roll is appropriate. It also pointed out that the EHC plan was reviewed in May 2024, and that Mr X had the right to appeal to the SEND Tribunal against the decision to continue to name the school.
11. The Ombudsman will not investigate Mr X’s complaint. The key matter is whether the school at which his daughter is on roll can deliver appropriate provision for her. This is not a matter on which the Ombudsman can take a view. The Council’s view that the school remains capable of delivering appropriate provision, and that the section 19 duty is not therefore engaged, is a matter for the professional judgment of its officers. That view is clearly set out in the correspondence and is not demonstrably unreasonable. That being the case, the Ombudsman cannot criticise it or intervene to substitute an alternative view.
12. The Council also takes the view that Mr X’s daughter’s special educational needs provision can be delivered by the school, which has been named in the EHC plan throughout. If Mr X disagreed with the decision to name the school in the EHC plan, his recourse was to use his right to appeal to the SEND Tribunal. Where appeal rights exist, the Ombudsman normally expects them to be used, and it would have been reasonable for Mr X to do so in this case. We will not intervene.

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Final decision

13. We will not investigate Mr X’s complaint because there is insufficient evidence of fault on the Council’s part, and it would have been reasonable for him to have used his right to appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman