Summary: We will not investigate Ms X’s complaint about the school named in her child’s Education, Health and Care Plan and that the Council is failing to provide suitable education to meet his needs. If she disagrees with the named school, it is reasonable for her to appeal to the tribunal. The Council appears to be providing suitable alternative education for Y.

The complaint

1. Ms X complains about the school named in her child, Y’s Education, Health and Care (EHC) Plan and that the Council is failing to provide suitable education to meet his needs. She says Y has lost education and the matter is causing the family distress. She wants the Council to accept the evidence identifying his needs and provide Y with suitable education to meet those needs.

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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.

(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. We cannot investigate Ms X’s dissatisfaction with the school named in Y’s EHC Plan. This is because the placement named in an EHC Plan can be appealed to the SEND tribunal. If Ms X is dissatisfied with the named school, it is reasonable for her to use her right of appeal.
9. Y is currently not attending the school named in his EHC Plan, but the Council is providing Y with a package of alternative educational provision. His package consists of over 20 hours per week and includes academic learning, mentoring and additional sessions to meet his needs. Although not attending the named school, the Council appears to be providing suitable alternative education to meet Y’s needs. We will not investigate this as there is insufficient evidence of fault.
10. We cannot direct a Council to name a specific school or educational placement in an EHC Plan. Only the SEND Tribunal can do this. If Ms X is dissatisfied with the alternative provision and the school named in the plan, she can use her right of appeal to the Tribunal and ask the Tribunal to name the setting of her choice. The Tribunal is the appropriate route to achieve the outcome she is seeking.

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Final decision

11. We will not investigate Ms X’s complaint because Y is receiving education and if Ms X is dissatisfied with the alternative provision or school named in Y’s EHC Plan, it is reasonable for her to appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman