Summary: We will not investigate this complaint about the special educational needs provision made by the Council for Mrs X’s child. We cannot investigate the content of the school’s curriculum. There is not enough evidence of fault in the way the Council reacted to the child’s placement breaking down to warrant investigation. And Mrs X’s desired outcome of having her child’s Education Health and Care Plan amended to name tuition at home is something where there is a right of appeal to the Special Educational Needs and Disability Tribunal it would be reasonable to use if the Council declines to amend it as she wishes. Investigation by us would be unlikely to lead to any worthwhile outcome.

The complaint

1. Mrs X said the Council failed to provide an educational setting for her child that made the provision required in the Education Health and Care (EHC) Plan. She wanted the Council to name EOTAS (tuition at home) in the child’s EHC Plan.

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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 cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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. 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.
6. 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

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

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My assessment

9. Part of Mrs X’s complaint to the Council was about the school’s curriculum. That is a matter for the school, and we cannot investigate it.
10. Non-provision of what is specified in a child’s EHC Plan is a matter we can investigate. However, the view we take depends on the extent of the non-provision, when the Council becomes aware of it and what action it takes. In this case the correspondence Mrs X provided showed she complained on 3 December 2024 to the Council. She said her child had stopped attending the school and she gave examples of non-provision. The correspondence stated the Council then arranged part-time alternative educational provision at home. It stated this was due to continue until February 2025 while the Council decided what changes the child’s EHC Plan might need after an early review of the Plan held in December 2024. Were we to investigate, it is unlikely we would find enough evidence of fault in that to warrant our involvement.
11. The content of the child’s EHC Plan is a matter where, should the Council not amend the Plan as Mrs X wishes, she would have a right to appeal to the SEND Tribunal it would be reasonable to use. We cannot tell the Council what should be named in an EHC Plan.

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Final decision

12. We will not investigate Mrs X’s complaint because doing so would be unlikely to lead to any worthwhile outcome. This is because:

• We cannot investigate a school curriculum as this is an internal matter for a school that we are legally prevented from considering;
• There is not enough evidence of fault in the Council’s response to the child becoming out of education to warrant our further involvement; and
• There is a right to appeal to the SEND Tribunal it would be reasonable to use if the Council does not agree to amend the EHC Plan in the from Mrs X wishes.

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Investigator's decision on behalf of the Ombudsman