Summary: We will not investigate this complaint that the Council failed to make arrangements to ensure the provision of suitable education for the complainant’s daughter. We have no jurisdiction to consider the periods during which her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) was engaged, and there are no grounds for us to question the Council’s decision that it was not required to make alternative educational provision during the remaining period.

The complaint

1. The complainant, Mrs X, complains that the Council failed to make arrangements to ensure the provision of suitable education for her daughter between September 2023 and July 2024.

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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. 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)
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.

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

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

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My assessment

7. Mrs X’s daughter has special educational needs and an Education Health and Care (EHC) plan. Mrs X says she has been attending a specialist placement since September 2024. Mrs X complains that the Council did not provide an appropriate school place or alternative provision between September 2023 and July 2024.
8. The evidence Mrs X and the Council have provided shows that Mrs X’s daughter was on roll at a mainstream school throughout the period at issue. Mrs X says the school could not meet her needs. She asked the Council to carry out an Education Health and Care Needs Assessment (EHCNA), which it declined to do in September 2023. She used her right to appeal to the SEND Tribunal against this decision.
9. As the request for an EHCNA is inextricably linked up with Mrs X’s belief that her daughter’s needs were not being met in school, the use of her appeal right places her complaint about the lack of suitable provision outside the Ombudsman’s jurisdiction and we cannot investigate it. There is no discretion available to us on this point. This restriction applies from the point at which the Council refused the request for an EHCNA until the appeal process ended in January 2024.
10. The SEND Tribunal upheld the appeal, and the Council was ordered to carry out an EHCNA. It issued the final EHC plan at the beginning of May 2024, naming the school at which Mrs X’s daughter was on roll. Mrs X contends that, at the point at which it issued the EHC plan, the Council was aware that the school could not meet her daughter’s needs.
11. In her letter of 17 May 2024 to the Council, Mrs X said she had appealed to the SEND Tribunal about the content of the EHC plan. Matters after the EHC plan was issued do not therefore fall to be considered by the Ombudsman. This is the case even though the Council subsequently amended the EHC plan and the matter did not proceed to a hearing.
12. The only matter for the Ombudsman to consider is whether the Council was demonstrably at fault in failing to secure provision between January and May 2024, that is, between the SEND Tribunal’s decision and the issuing of the EHC plan. It is not for us to take a view on whether the school was suitable or capable of meeting Mrs X’s daughter’s needs. That was a matter to be determined in the course of the EHCNA.
13. The correspondence shows that the Council felt that the efforts the school was making to provide a path to reintegration were appropriate in the circumstances and, that being the case, its duty under section 19 of the Education Act 1996 to make alternative provision was not engaged. Mrs X disagrees with the Council’s view, but that does not mean it amounts to fault.
14. The Council’s view on the applicability of the section 19 duty is set out in some detail in its Stage 1 and Stage 2 complaint responses. The position set out, and the professional judgement on which it is based, appear reasonable and proportionate and are not demonstrably flawed. That being the case, the Ombudsman cannot criticise them or intervene to substitute an alternative view. Our intervention is not therefore warranted.

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Final decision

15. We will not investigate Mrs X’s complaint. This is because we cannot consider the periods during which her right to appeal to the SEND Tribunal was engaged, and there are no grounds for us to question the Council’s decision that it was not required to make alternative educational provision during the remaining period.

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Investigator's decision on behalf of the Ombudsman