Summary: We will not investigate this complaint about the Council’s failure to arrange alternative provision or provide the support in an Education Health and Care Plan because there is no evidence of fault.

The complaint

1. Miss X complained about the Council’s failure to provide alternative education and the support in her son, Y’s, Education Health and Care Plan between December 2018 and September 2023. She said this meant Y missed out on education.
2. She also said the Council failed to respond to her complaint because it said it was a duplicate of a previous complaint.

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The Ombudsman’s role and powers

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. 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

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

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My assessment

Events 2018 to June 2022

8. Miss X complained the Council failed to provide an education or the support in section F of her son, Y’s Education, Health and Care Plans (EHC Plan). She said her son was out of school from December 2018, but the Council did not agree to arrange home tuition until June 2023.
9. We will not consider the period prior to the SEND Tribunal order dated June 2022 because the complaint is late, and we are unlikely to be able to achieve a worthwhile outcome by investigating now.

Events from June 2022 to February 2023

10. We will also not investigate Miss X’s complaint the Council failed to provide education from June 2022 onwards.
11. The SEND Tribunal ordered the Council to name school 1 in Y’s EHC Plan, which was Miss X’s preferred school. The Council duly named school 1 in Y’s EHC Plan. Miss X then changed her view and did not send Y to school 1.
12. Where a school is named in a child’s EHC Plan, the Council should ensure a place is available to the child. If the parent chooses not to send the child to the name setting, the Council will not usually owe a duty to provide alternative education unless there are good reasons why they cannot attend, such as medical reasons. The Council will fulfil its duty to arrange the support in section F of a child’s EHC Plan by ensuring a place for the child at the named school and by commissioning any additional support to be delivered at the school. It is not under a duty to provide the decision F support separately from the school place.
13. In its complaint response, the Council confirmed a place was available for Y at the school named in their EHC plan from September 2022. This was the school the SEND Tribunal had decided was suitable for Y. It said it had no evidence that Y could not attend due to illness. It therefore did not consider it had a duty to provide an alternative education under section 19 of the Education Act 1996. Due to its concern that Y had been out of education since December 2018, it agreed in June 2023 to arrange home tuition.
14. Therefore, we will not investigate Miss X’s complaint about the Council failing to arrange alternative educational provision for Y from September 2022 to June 2023, nor about its failure to arrange the support in section F separately from arranging a place at school 1. The Council confirmed there was a school place available, and no medical reasons preventing Y from attending. There is insufficient evidence of fault in how it considered Y’s education to justify our involvement.

Complaints handling

15. Although Miss X had made a separate complaint about the lack of education and section F support, the Council had already addressed these issues in its stage 2 response to an earlier complaint.

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Final decision

16. We will not investigate Miss X’s complaint because parts of the complaint are late, and there is not enough evidence of fault for the period from June 2022.

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Investigator's decision on behalf of the Ombudsman