Summary: We will not investigate this complaint about special educational needs provision for Ms X and communications adjustments for her and her mother, Ms Y. Doing so would be unlikely to lead to any worthwhile outcome, as there is not enough evidence of fault in the Council’s actions up to September 2024 to warrant investigation, and after that Ms X and Ms Y had a right of appeal to a Tribunal it would have been reasonable to use.

The complaint

1. Ms Y complained on her own behalf and on behalf of her adult daughter, Ms X, that the Council:

• Failed to make educational provision for Ms X since January 2024;
• Failed to make communication adjustments for their disabilities; and
• Failed to assess Ms Y’s needs as a carer for Ms X.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 Tribunal in this decision statement.
5. 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, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

8. The complaint correspondence is detailed. Ms Y’s original complaint to the Council was about the first two bullet points of complaint in paragraph 1. I have therefore not considered other matters that feature in her later complaint to us. She is welcome to return to us about these matters when she has exhausted the Council’s complaint process regarding them.
9. The correspondence states Ms Y was reluctant to agree to contact between the Council and the previous councils where she had lived when she moved into the area. It lays out the Council’s attempts to get a copy of Ms X’s existing Education Health and Care (EHC) Plan and states the Council received this on 21 May 2024. The Council had no SEN duty to Ms X until it received the EHC Plan.
10. From this point, which was just before an education half-term holiday, it had a duty to make the SEN provision. I note the correspondence details the Council’s attempts to set up a review of the EHC Plan, which were delayed by making communications adjustments for Ms Y and Ms X. The correspondence states the Council offered a referral to its home tuition service in the week after the half-term holiday. Although it had no alternative education duty to Ms X, who was over 16, this would have been a reasonable attempt to offer the SEN provision in her EHC Plan while it drafted a new EHC Plan.
11. The correspondence states the Council issued the final EHC Plan on 16 September 2024, shortly after the start of the new academic year. This gave Ms Y and Ms X a right of appeal to the SEND Tribunal. It would have been reasonable to use that right as they wanted a place at a specific establishment that the Council had not named in the EHC Plan. We will not consider matters where a person has or had an alternative remedy available by way of an appeal.
12. The evidence available suggests the Council met all or most of Ms Y and Ms X’s requested communication adjustments after January 2024. I note it arranged the EHC Plan review in person, at an acceptable venue, and eventually agreed to the advocacy Ms Y wanted. Without sufficient evidence of fault in the matter of SEN provision, any fault in making adjustments is not enough on its own to warrant our further involvement.

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Final decision

13. We will not investigate Ms X’s complaint because:

• There is not enough evidence of fault by the Council between January and September 2024 to warrant this;
• Ms X and Ms Y had an alternative remedy available by way of appeal to the SEND Tribunal from September 2024 it would have been reasonable to use; and
• Investigation would be unlikely to lead to any worthwhile outcome.

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Investigator's decision on behalf of the Ombudsman