Summary: We will not investigate this complaint about outstanding school fees. There is not enough evidence of fault, and some matters are too closely linked to matters considered by the tribunal.

The complaint

1. Mrs X is complaining the Council will not pay the outstanding fees for her daughter’s school.
2. She states this caused her significant distress and financial loss

Back to top

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 (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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.

Back to top

How I considered this complaint

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

Back to top

My assessment

9. Mrs X states she attended a meeting to discuss a new school placement, due to her daughter’s school closing. At the meeting, she says the Council agreed to name her preferred school choice (School Y), which was an independent school, on her daughters Education Health and Care (EHC) Plan.
10. After the meeting Mrs X enrolled her daughter at School Y, incurring costs. This was before the Council issued the new EHC Plan and before the closure of the previous school named in the EHC Plan.
11. When the Council issued the final EHC Plan it named a different school- School Z- as it was not prepared to fund School Y. Mrs X disagrees with this decision and appealed to the Tribunal against it. The Council conceded Mrs X’s appeal and agreed to name School Y in the EHC Plan from November 2024. Mrs X wants the Council to pay School Y’s fees from the date she enrolled her daughter in the school but the Tribunal confirmed it could not direct the Council to do so.
12. Whether the Council should pay School Y’s fees for the period before November 2024 is directly linked to the question of whether it should have named School Y in the revised EHC Plan rather than School Z. As Mrs X has already appealed this issue at the First-tier Tribunal, we cannot investigate it.
13. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
14. In any event, while the Council may have expressed an intention to name School Y it is the EHC Plan itself which commits the Council to providing and paying for a school and this applies from the date of issue. The Council is not required to fund any provision or school fees incurred until it is named in the EHC Plan.
15. Mrs X chose to enrol her daughter at School Y before the Council had issued the final EHC Plan and without any formal agreement for the Council to fund the place. We could not therefore say School Y’s fees were the direct result of any action by the Council or say the Council must pay them as Mrs X would like.

Back to top

Final decision

16. We will not investigate Mrs X’s complaint because there is not enough evidence of fault. Some matters are too closely linked to matters considered by the tribunal.

Back to top

Investigator's decision on behalf of the Ombudsman