Summary: We will not investigate Ms M’s complaint because we cannot achieve the outcome she wants. The SEND Tribunal has decided which school B will attend. Ms M disagrees, but we cannot consider these matters now. The Council has responded to Ms M’s concerns about the school and there is nothing we could add by further investigation. There is not enough evidence of fault in the Council’s decision not to make alternative arrangements for B’s education to justify investigating.

The complaint

1. Ms M complains about arrangements for her son B’s education. B has an education, health and care (EHC) plan maintained by the Council. The contents of B’s plan were decided by the SEND Tribunal. Ms M is unhappy with the school the Tribunal decided B shall attend. She has concerns about health and safety at the school, and she does not consider the school can meet B’s needs. She is unhappy B’s EHC plan does not include a programme of ‘dental desensitisation’.
2. Ms M has decided not to send B to the school. She complains about the Council’s response. She complains the Council has not made suitable alternative arrangements and has instead threatened to prosecute her.

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The Ombudsman’s role and powers

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, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter, or could have raised the matter with the Tribunal during their appeal. (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.

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How I considered this complaint

6. I considered information provided by Ms M and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. It seems to me that what Ms M is really unhappy about is the fact the Tribunal did not agree that B should attend the school she wanted. We have neither the expertise nor the authority to decide which school B should attend. We cannot achieve the outcome Ms M wants.
9. Ms M has raised a number of concerns about the school chosen by the Tribunal which, to her mind, mean the school is unsuitable. These are matters she should have taken up with the Tribunal. She had an opportunity to do so during her appeal. We cannot consider these matters now.
10. Ms M’s health and safety concerns include the fact the school is overlooked by residential properties, and the perimeter fence which she believes means pupils are at risk from intruders. The Council has responded to Ms M’s concerns. There is nothing more we could add by investigating further.
11. Ms M does not consider the school has adequate facilities to meet B’s needs. Ms M should have raised her concerns with the Tribunal. We cannot consider these matters now.
12. Ms M complains B’s EHC Plan does not include a programme of ‘dental desensitisation’, and the school does not have a specialist dentist chair. Her preferred independent special school, in contrast, does. Ms M should have raised her concerns with the Tribunal. We cannot consider these matters now.
13. Ms M has decided not to send B to the school and complains the Council has not made suitable alternative arrangements. She complains the Council has threatened a school attendance order. The Tribunal has decided the school is suitable and there is a place available for B. There is not enough evidence of fault in the Council’s actions to justify investigating Ms M’s complaint.

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Final decision

14. We will not investigate Ms M’s complaint because we cannot achieve the outcome Ms M wants. The SEND Tribunal has decided which school B will attend. Ms M disagrees, but we cannot consider these matters now. The Council has responded to Ms M’s concerns and there is nothing we could add by further investigation. There is not enough evidence of fault in the Council’s decision not to make alternative arrangements for B’s education to justify investigating.

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Investigator's decision on behalf of the Ombudsman