Summary: We cannot investigate Mrs X’s complaint that the Council failed to arrange suitable education for her child. This is because she has appealed the matter to the Tribunal. There is not enough evidence of fault in the Council’s decision to take enforcement action around non-attendance to justify our involvement.

The complaint

1. Mrs X complains the Council named an unsuitable school in her child’s, Y’s, Education, Health and Care Plan (EHC Plan). She says she appealed the matter to the Tribunal and was successful. She says the Council failed to arrange suitable education, or alternative provision during the appeal forcing her into elective home education.
2. She also complains the Council initiated court proceedings against her after Y stopped attending school.
3. Mrs X says the matter has caused her significant stress and health issues. She also says it has caused her child to miss out on education and time to make friends. She wants the Council to compensate her for the health issues and her child’s loss of education.

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The Ombudsman’s role and powers

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.
7. 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

8. I considered information provided by Mrs X and the Council.
9. I also considered the Ombudsman’s Assessment Code.

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My assessment

10. The law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
11. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
12. The reasons Y did not attend the school during the appeal period, and Y being home educated, was a consequence of Mrs X’s disagreement about the educational provision in the EHC plan. We therefore cannot investigate whether the Council failed to provide suitable education during the appeal period.
13. Mrs X also complains the Council initiated court proceedings against her for Y’s non-attendance. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school.
14. In its complaint response the Council confirmed Y’s school met with Mrs X to discuss different types of education for Y to access and implemented a reintegration plan to support her child attend school. As Y did not attend school, the Council was therefore entitled to take enforcement action in these circumstances. There is not enough evidence of fault to justify us investigating.

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Final decision

15. We will not investigate Mrs X’s complaint because she has appealed to the Tribunal and there is not enough evidence of fault in the Council’s decision to take enforcement action.

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Investigator's decision on behalf of the Ombudsman