Summary: We will not investigate this complaint that the Council has failed to make alternative educational provision for the complainant’s son. This is because there is insufficient evidence of fault on the Council’s part to warrant investigation.

The complaint

1. The complainant, Miss X, complains that the Council has failed to make alternative educational provision for her son while he is unable to attend school,

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Miss X’s son has special educational needs and an Education Health and Care (EHC) plan. Miss X says her son cannot attend school due to anxiety caused by a disciplinary sanction applied by the school. She argues that the Council’s duty to make alternative provision under section 19 of the Education Act 1996 applies.
6. Miss X complains that the Council has not made the alternative provision it is required to make. She also complains that it is not ensuring the delivery of the provision set out in her son’s EHC plan.
7. The Ombudsman will not investigate this complaint because there is insufficient evidence that the Council is at fault. We cannot comment on the sanction imposed on Miss X’s son by the school. This is a disciplinary matter and, as such, falls outside our jurisdiction. Neither can we take a view on whether Miss X’s son cannot attend school, as she argues.
8. It is for the Council to consider and respond to Miss X’s request for alternative provision. It has done so, and its decision is that there is no medical evidence to support Miss X’s contention that her son cannot attend school. It therefore states that its duty to make alternative provision does not apply.
9. Miss X disagrees with the Council’s decision. But that does not mean it amounts to fault. Whether the section 19 duty applies is a matter for the professional judgment of the Council’s officers, and there is no evidence of fault in the way the Council made its decision. Without such evidence the Ombudsman cannot intervene to criticise the decision, or substitute an alternative view,
10. Given that we cannot express a view on whether Mrs X’s son can attend school, we cannot find that he is unable access the provision set out in his EHC plan. There are therefore no grounds for us to investigate the complaint.

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Final decision

11. We will not investigate Miss X’s complaint because there is insufficient evidence of fault on the Council’s part.

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Investigator's decision on behalf of the Ombudsman