Summary: We will not investigate this complaint that the council failed to provide suitable full-time education for Miss X’s child who was permanently excluded from school and the contents of their Education Health and Care Plan. This is because there is insufficient evidence of fault by the Council and because it is reasonable for Miss X to use her right of appeal to a tribunal.

The complaint

1. Miss X complains that the Council failed to provide suitable full-time education provision after her son, Z, was permanently excluded from school. Miss X also complains about the contents of a recent final Education Health and Care (EHC) Plan which Miss X says does not include all information about Z’s needs and includes personal information about Miss X which she considers to be a data breach.

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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 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))
3. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. 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.

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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. Miss X’s son, Z, has an EHC Plan. He stopped attending the school named in the EHC plan after he was permanently excluded. The Council arranged for Z to attend a Pupil Referral Unit (PRU) but Miss X does not consider it appropriate for Z and considers that the Council has a duty to make alternative provision under Section 19 of the Education Act 1996.
9. The Council argues that the PRU is appropriate, and the Section 19 duty is therefore not engaged. The Council has since issued an amended final EHC Plan.
10. I will not investigate Miss X’s complaint. Whilst Miss X strongly disagrees with the Council’s decision that the Section 19 duty does not apply, this on its own does not amount to fault. I have seen no evidence of fault in the Council’s decision making, and it is therefore not for us to say that the school at which Miss X’s son has a place is unsuitable.
11. The Council has since issued a final EHC Plan giving Miss X the right of appeal to the SEND Tribunal against the contents including the placement named. Only the SEND Tribunal can order councils to make changes to EHC Plans. For that reason, I consider it reasonable for Miss X to use her right of appeal.
12. If Miss X considers that the Council has committed a data breach she should raise this with the Information Commissioner’s Office, who are best placed to deal with complaints about data protection matters.

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Final decision

13. We will not investigate Miss X’s complaint because there is insufficient evidence of fault by the Council and because it is reasonable for Miss X to use her right of appeal to a tribunal.

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Investigator's decision on behalf of the Ombudsman