Summary: We will not investigate this complaint about the Council’s role in a school trying to manage attendance, behaviour, and access to full time education. There is not enough evidence of fault in any Council actions which led to injustice to the complainant and her son, so it does not warrant us investigating.

The complaint

1. Mrs B says the Council failed to provide suitable education for her son or to oversee its provision by his school in 2021 and 2022, instead advising the school how to exclude him from school or school activities. She says this meant he missed significant education that year and before transferring to secondary school, leading to adverse effects on his and her mental health and wellbeing. She wants the Council to provide funding for extra provision to help him catch up, and to compensate him and her for the distress and anxiety it caused.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes limits 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 Special Educational Needs and Disability (SEND) tribunal considers appeals about SEN matters and claims of disability discrimination.
5. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has adversely affected 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 some correspondence between her and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mrs B’s son attended a primary school and had an Education Health and Care (EHC) Plan the Council had made. In 2021 and 2022 he struggled to access his education. The school suspended him and tried a part time timetable to support him to return to full time education. Mrs B’s son turned 11 in 2022, so he moved to secondary education in September that year.
9. I have seen nothing in the correspondence or Mrs B’s complaint to suggest she had asked the Council to provide other education for her son while he was still at primary school, whether at another school or in some other way. Her complaints were to the school about its actions in restricting her sons access to education, and to the Council about the school’s actions.
10. We do not therefore have enough evidence of the Council being at fault for not providing education to replace what Mrs B’s son did not receive at his school.
11. On Mrs B’s complaint the Council was guiding the school on how to exclude her son, there is no fault in a council providing advice to a maintained school, if asked, on how to manage difficulties with a pupil’s attendance and behaviour. If the school had permanently excluded her son, it would have been open to
    Mrs B to ask the Council for another school place, but that did not happen.
12. Mrs B made a tribunal claim against the school for discrimination against her son under the Equality Act 2010. If she considered the Council was also responsible for what happened it would have been reasonable for her to include the Council as a defendant or interested party in her claim. There is no suggestion in the record of the tribunal hearing and judgement of the Council or anyone else being responsible for the matters in the claim. On the points the tribunal upheld, it held the school solely responsible. There is therefore no evidence of Council fault which should lead us to investigate its actions around the same period.

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Final decision

13. We will not investigate Mrs B’s complaint because there is not enough evidence of fault in any Council actions which led to injustice to her and her son, so it does not warrant us investigating.

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Investigator's decision on behalf of the Ombudsman