Summary: We will not investigate this complaint about the Council’s refusal to agree to provide Education Otherwise Than at School for the complainant’s son. This is because the complainant had the right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and it would have been reasonable for her to do so.

The complaint

1. The complainant, Ms X, complains that the Council is at fault in refusing her request to provide an Education Otherwise Than at School (EOTAS) package for her son.

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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.

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How I considered this complaint

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

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My assessment

7. Ms X’s son has special educational needs and an Education Health and Care (EHC) plan. Ms X says he is not currently attending school due to safeguarding concerns. She says EOTAS is appropriate for her son and complains that the Council is at fault in refusing her request to provide it.
8. The case correspondence shows that the Council believes the provision set out in Ms X’s son’s EHC plan can be provided at his current school. It does not agree that EOTAS is appropriate, and it regards Ms X’s son’s absence from school as an attendance matter. Ms X argues that it is obviously the case that her son’s needs should be met by an EOTAS package.
9. The Ombudsman will not investigate Ms X’s complaint. It is not for us to express a view on whether Ms X’s son’s needs should be met in a school setting or via EOTAS. The EHC plan was issued in July 2024 and, if she was unhappy with its content, Ms X’s recourse was to use her right to appeal to the Tribunal.
10. Where appeal rights exist, the Ombudsman normally expects them to be used. It would have been reasonable for Ms X to use her right to appeal. That being the case, there are no grounds for us to intervene.

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Final decision

11. We will not investigate Ms X’s complaint because it would have been reasonable for her to use her right to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman