Summary: We will not investigate Miss X’s complaint about educational provision within her child’s Education, Health and Care Plan. This is because it was reasonable for Miss X to appeal to the First-tier Tribunal (Special Educational Needs and Disability). An investigation into the remainder of Miss X’s complaint would not lead to a different outcome.

The complaint

1. Miss X complained the Council failed to provide suitable education and secure a suitable school placement for her child, Y, as outlined within her Education, Health and Care (EHC) Plan. She said this had negatively impacted Y emotionally and academically. Miss X would like the Council to provide a different education placement which is suitable for Y, and consider compensation for distress and lost education.

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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. 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 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.
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, or
• further investigation would not lead to a different outcome, or

(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 Miss X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

The law

8. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act).
9. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19).

My assessment

10. Miss X complained to the Council about Y’s education which she thought was unsuitable and fell below what was agreed in their EHC Plan.
11. In its complaint response, the Council confirmed the school place named in Y’s EHC Plan was available and that provision specified in the EHC Plan was reliant on Y attending. It said the school had implemented a reintegration plan for Y, with Miss X’s involvement. Therefore, it was meeting its Section 42 provision in this case.
12. The Council said it was satisfied that Y could attend school with the enhanced support it had put in place, including daily one-to-one sessions. Therefore, Section 19 was not engaged in this case.
13. The Council has confirmed the School named in Y’s EHC Plan is available. It has also satisfied itself that Y can attend the School with the support available. There is not enough evidence of fault to justify our involvement.
14. Mrs X is unhappy with the school named in Y’s EHC Plan. She does not consider it is suitable to meet her needs.
15. If Miss X does not feel the school is suitable for Y’s needs, she would need to appeal to the SEND Tribunal. The Tribunal can order councils to change EHC Plans. That is not something we can do. It was reasonable for Miss X to appeal to the Tribunal if she disagrees with the school named in Ys EHC Plan; therefore, we will not consider her complaint.
16. Miss X also complained the Council did not meet her reasonable adjustments. We will not investigate this part of the complaint because the Council said it had considered Miss X’s requested reasonable adjustments and made efforts to accommodate her needs by offering her additional support at the draft and final EHC Plan stages. Further investigation would not lead to a different outcome.

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Final decision

17. We will not investigate Miss X’s complaint because it was reasonable for her to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman