Summary: We will not investigate this complaint that the Council failed to make alternative provision for the complainant’s son while he was unable to attend school, and declined to reimburse costs she incurred in sourcing provision herself. There is insufficient evidence of fault on the Council’s part to warrant investigation.

The complaint

1. The complainant, Mrs X, complains that the Council failed to make provision for her son while he was unable to access education, and has declined to reimburse the costs she incurred in doing so.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I considered information provided by the complainant.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Mrs X’s son has special educational needs and an Education Health and Care (EHC) plan. Mrs X says that in November 2024 an early annual review of the EHC plan took place at her request. She says that, at that point, her son could not access education, and she asked for an Education Otherwise Than at School (EOTAS) package to be agreed. She says the school’s representatives agreed with this proposed course of action.
6. The Council agreed an EOTAS package in February 2025 and issued an amended Final EHC plan. Mrs X’s complaint concerns the period between the early annual review in November 2024 and the Council’s agreement to fund EOTAS at the beginning of February 2025. She contends that the Council’s duty to make alternative provision set out in section 19 of the Education Act 1996 was engaged during this period, and its failure to do so amounts to fault.
7. In the absence of alternative provision, the PA sourced and paid for educational provision herself. She has asked the Council to reimburse the cost and complains that it has refused to do so for the period before it agreed EOTAS. She also contends that the need to pay for the provision caused her family to incur further costs, which she also wants the Council to reimburse. The Council has declined to backdate reimbursement beyond the date in February 2025 when EOTAS was agreed.
8. The Ombudsman will not investigate Mrs X’s complaint because there is insufficient evidence of fault on the Council’s part. It is not for us to take a view on whether the section 19 duty was engaged. That is a matter for the Council. The correspondence indicates that the Council does not accept that the duty was engaged. It points out that, as Mrs X’s son remained on roll at the school, it remained responsible for his provision. The Council did not agree the arrangement for tutoring and does not therefore accept responsibility for its cost before EOTAS was agreed.
9. Mrs X disagrees with the Council’s position. But that does not mean it amounts to fault. The Council’s decision is cogent and defensible and there is no indication of fault in the way it was made. That being the case, it is not for the Ombudsman to criticise the decision or intervene to substitute an alternative view.

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Final decision

10. We will not investigate Mrs X’s complaint because there is insufficient evidence of fault on the Council’s part.

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Investigator's decision on behalf of the Ombudsman