Summary: We cannot investigate Mr X’s complaint about alternative provision and the Council’s decision to refuse a personal budget. It was appropriate for Mr X to appeal to the tribunal if he disagreed with the type of placement specified in the Education Health and Care plan.

The complaint

1. Mr X complained about the Council’s decision to refuse a personal budget to deliver the educational provision set out in his child, Y’s, Education Health and Care plan (EHC plan). He said Y had been out of school since November 2023 and the school named in the EHC plan had said it could not meet their needs. He said there was no setting suitable for Y, therefore they needed a personal budget to arrange education other than at school (EOTAS)

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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 SEND 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
• any injustice is not significant enough to justify our involvement.

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

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My assessment

8. The Council issued an EHC plan for Y in July 2023. It said Y’s educational needs could be met by the School. If Mr X disagreed with the provision specified in the EHC plan or named placement, it was reasonable to appeal to the SEND tribunal.
9. In November 2023, Y stopped attending school. The School held an annual review in January 2024. The following month, the Council issued a decision letter to Y’s parents. It said it would not change the provision specified in Y’s EHC plan. That letter set out their appeal rights.
10. Mr X asked the Council for a personal budget to arrange Y’s education. The Council refused. Mr X complained. He said in the annual review the School said it could not meet Y’s needs and it supported a request for Y to receive EOTAS. The Council did not uphold the complaint.
11. Although Mr X is unhappy with the Council’s response, we will not investigate. The request for the personal budget is to arrange Y’s provision through EOTAS. If Mr X disagreed with the placement specified in the EHC plan and is of the view the School named cannot meet Y’s needs, then it was reasonable for him to appeal following the EHC plan review. Only the tribunal can decide whether the named School is a suitable placement, or whether Y’s needs can only be met through EOTAS. That is not a decision the Ombudsman can make. We also will not consider any educational provision made by the Council from the point Mr X had review rights, as the reason Y is not attending education is, in our view, connected to or a consequence of a matter that could have been, part of an appeal to the tribunal.   
12. We will also not investigate Mr X’s complaints that Y has not received a suitable education between November 2023 and February 2024. Firstly, it is unlikely we would find fault with the Council for not arranging alternative provision immediately, without it first understanding why Y was not attending. The School’s decision to review Y’s EHC plan was the most appropriate way to consider this. And, even if there were any fault, given the period of missed provision is relatively short, any injustice is not significant enough to justify our involvement.

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Final decision

13. We cannot investigate Mr X’s complaint because it was reasonable for him to appeal to tribunal.

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Investigator's decision on behalf of the Ombudsman