Summary: We cannot investigate Ms X’s complaint the Council failed to consider her requests for education otherwise than at school during her child’s Education, Health and Care Needs Assessment. This is because her complaint overlaps with a SEND Tribunal appeal about her child’s Education, Health and Care Plan.

The complaint

1. Ms X’s child, B, has an Education, Health and Care Plan (EHC Plan). She complains the Council:

1. failed to consider the suitability of education otherwise than at school (EOTAS) during the EHC Needs Assessment, despite her many requests; and,
2. failed to provide reasons, in line with the law, for its decision to name a mainstream school in the Plan instead.

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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 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)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. 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))

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How I considered this complaint

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

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My assessment

8. Ms X complains about the Council’s handling of her requests for EOTAS for B during B’s EHC Needs Assessment. She complains the Council failed to provide reasons for later naming a mainstream school in Section I of the Plan. The alleged fault in these processes is directly linked to Ms X’s SEND Tribunal appeal about the suitability of the placement named in Child B’s Plan. We cannot look at any complaint that overlaps with a SEND Tribunal appeal.
9. For the same reason, we cannot investigate Ms X’s complaint to the extent it concerns the Council’s failure to arrange educational provision during the appeal while B was out of school. This matter overlaps with the same SEND Tribunal appeal. Any dispute over provision while B was not in school is linked to Ms X’s appeal that the mainstream school named in Section I is unsuitable and EOTAS should be provided.
10. Ms X disagrees with the Council’s refusal to consider her complaint under its corporate complaints procedure. It is not proportionate to consider the Council’s complaint handling alone when we cannot look at the substantive matters. In any case, the Council has explained to Ms X that, in line with its complaints policy, complaints that are linked to a separate SEND Tribunal appeal are excluded from its complaints procedure. It gave Ms X details of the relevant part of its procedure that applied. There is not enough evidence of fault to justify investigating.

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Final decision

11. We cannot investigate Ms X’s complaint that the Council failed to consider her requests for education otherwise than at school during her child’s Education, Health and Care Needs Assessment. This is because her complaint overlaps with a SEND Tribunal appeal about her child’s Education, Health and Care Plan.

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Investigator's decision on behalf of the Ombudsman