Summary: We will not investigate Ms X’s complaint that the Council delayed agreeing an Education Other Than at School package for her child. This is because the main issue complained of carried a right of appeal to a tribunal which it was reasonable for Ms X to use.

The complaint

1. Ms X complains the Council delayed agreeing to fund an Education Other Than at School package for her child. Ms X also complained the Council delayed communicating with her.
2. She said as a result her child was left without a suitable, full-time education for several months when they stopped attending school and she had to privately fund her child’s education. Ms X wants the Council to fund the family’s preferred package without delay.

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The Ombudsman’s role and powers

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. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
5. 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

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

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Relevant law and guidance

8. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. 
9. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
10. The Ombudsman cannot direct changes to the sections of the EHC Plan which relate to education or name a different educational setting. Only the SEND Tribunal can do that.
11. EOTAS stands for Education Other Than At School and is a means by which children with an EHC Plan can receive specialist education without attending a school setting.

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My assessment

12. Ms X asked for an EOTAS package for her child in September 2024 as their attendance had reduced and she said they were struggling in the school environment.
13. The Council issued a final EHC Plan in November 2024 which said the child should access classroom-based support instead. Ms X disagreed but did not use her right of appeal to the SEND Tribunal.
14. Several months later Ms X’s child stopped attending school completely. Not long afterwards, the Council issued another final EHC Plan, again setting out classroom based support. Ms X disagreed but again did not use her right of appeal to the SEND Tribunal.
15. Ms X was informed by the Council of her appeal rights and it would have been reasonable for her to use them. Therefore we will not investigate this part of Ms X’s complaint.
16. Ms X also complained the Council’s communications with her were poor and delayed. The Council accepted this, apologized and paid Ms X £500 as a financial remedy. This was appropriate action for the Council to take and so we will not investigate this complaint further.

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Final decision

17. We will not investigate Ms X’s complaint because it was in part appealable to a Tribunal and in part has already been remedied by the Council.

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Investigator's decision on behalf of the Ombudsman