Summary: We will not investigate Mrs X’s complaint about the Council’s decision not to issue an Education Health and Care Plan. It is reasonable to expect Mrs X to have appealed to the Tribunal. We are unlikely to find fault in the Council’s decision that it does not have to provide alternative provision.

The complaint

1. Mrs X says the Council did not properly assess her child, B’s needs for an Education Health and Care Plan (EHC Plan) and failed to provide B with a fulltime education for over a year.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I considered information provided by Mrs X and the Council’s .
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mrs X requested an EHC Plan needs assessment in October 2023. The Council declined the request. Mrs X appealed to the Tribunal. The Council conceded the appeal in March 2024 and agreed to assess B’s needs. Following its assessment the Council decided in July 2024 it did not need to produce an EHC Plan.
7. Mrs X complained in November 2024. She said the EHC Plan needs assessment was inadequate. She says B had not received a full time education for a year.
8. The Council replied in January 2025. It accepted the assessment was not as good as it could have been. It told Mrs X that she could have appealed and she could now ask for another assessment. It said it had only been informed of one period of reduced education. It said the school had told it B had a reduced timetable for a period, of 25 hours a week. The Council said this was not low enough to mean the Council has to provide alternative education.

Analysis

9. We cannot investigate the Council’s decision in November 2023 not to assess B, as Mrs X appealed to the Tribunal.
10. We will not investigate the Council’s decision in July 2024 not to issue an EHC Plan for B. This is because it is reasonable to expect Mrs X to have appealed to the Tribunal. This means we also should not look at the assessment quality, including which reports the Council chose to obtain. This is because the injustice which flows from any faults in the assessment process, is the decision not to issue an EHC Plan, and she had the right of appeal of that decision.
11. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
12. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
13. The Council’s alternative provision duty applies when it knows the child is not in receipt of full time education. Here the Council did not know this was the case as 25 hours a week does not qualify usually as part time education, but is usually considered enough to meet the full time education requirement.

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Final decision

14. We will not investigate Mrs X’s complaint because it is reasonable to expect her to have appealed the Council’s decision not to issue an EHC Plan. We are unlikely to find fault in its decision that it did not owe B an alternative provision duty.

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Investigator's decision on behalf of the Ombudsman