Summary: We will not investigate this complaint about the educational provision made for Miss X’s child. There is not enough evidence of fault by the Council in matters up to December 2024 to warrant our further involvement. After that, Miss X had a right of appeal against the Education Health and Care Plan the Council issued it would have been reasonable to use.

The complaint

1. Miss X said the educational provision made for her child in Year 11 was inadequate.

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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 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))
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
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.

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How I considered this complaint

7. I considered information provided by the complainant and the Council, and the Ombudsman’s Assessment Code.
8. I have considered matters from August 2024 onwards,12 months before Miss X approached us.

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My assessment

9. The Council issued a new Education Health and Care (EHC) Plan for Miss X’s child in December 2024. The new Plan named education other than at school (EOTAS). This followed a review in August 2024 when the child had been having difficulties at school, and when a serious matter involving the child was pending. The nature of the serious matter would have been likely to make it harder to place the child in a school after August 2024.
10. Once the Council issued the final EHC Plan in December 2024, Miss X had a right of appeal it would have been reasonable to use against the Council’s decision to name EOTAS in the Plan. We will not investigate the period after December 2024 due to Miss X having had an alternative remedy available by way of the appeal right to the Tribunal.
11. In its response to Miss X’s complaint, the Council stated she had declined all offers of EOTAS. It also stated she had declined EOTAS in September 2024 due to the serious matter that was pending involving her child. The Council also stated all the schools it consulted about placing the child declined to offer a place. I note Miss X did not consider EOTAS suitable for her child and wanted a school place. However, that does not mean investigation would be likely to find fault with the Council’s actions.

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Final decision

12. We will not investigate Miss X’s complaint because there is not enough evidence of fault in the Council’s actions between August and December 2024 to warrant our further involvement.
13. After December 2024, Miss X had an alternative remedy available by way of appeal to the SEND Tribunal it would have been reasonable to use.

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Investigator's decision on behalf of the Ombudsman