Summary: We will not investigate Mrs X’s complaint that the Council has not provided her child with a suitable education. This is because there is not enough evidence of fault.

The complaint

1. Mrs X complains the Council refused to provide alternative provision for her daughter Y, who is unable to attend school. And the Council has repeatedly refused to carry out an Education, Health and Care Needs Assessment (EHCNA) for Y.

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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. 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))
4. 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)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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

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

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My assessment

9. I will not investigate Mrs X’s complaints about the Council’s refusals to carry out an EHCNA as she had a right to appeal and it was reasonable to use it. The SEND Tribunal is the appropriate body to look at the Council’s decision and decision making process.
10. I cannot investigate Mrs X’s complaint the Council refused her January 2025 request for an EHCNA as she has appealed to the Tribunal.
11. Section 19 of the Education Act 1996 places a duty on councils to make alternative provision for children of compulsory school age who are unable to attend school. Y is not of a compulsory school age and so the Council does not have to arrange provision. There is not enough evidence of fault to justify investigating.

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Final decision

12. We will not investigate Mrs X’s complaint because there is not enough evidence of fault.

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Investigator's decision on behalf of the Ombudsman