Summary: We will not investigate Mrs X’s complaint the Council has failed to provide her daughter with a suitable education. This is because there is not enough evidence of fault by the Council. If Mrs X wants to challenge the school named in her daughter's Education, Health and Care Plan, then it is reasonable she uses her right of appeal to a tribunal.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained the Council failed to provide her daughter (Y) with a suitable education after she stopped attending school.

Back to top

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. 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.

Back to top

How I considered this complaint

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

Back to top

My assessment

7. Mrs X says Y stopped attending school in November 2023. Mrs X says she has asked the Council to provide Y with alternative provision, but it has refused. Mrs X says the school named in Y’s Education, Health and Care Plan (EHC Plan) cannot meet her needs. The Council disagrees and named the same school in a revised EHC Plan it issued in August 2024.
8. We will not start an investigation into Mrs X’s complaint.
9. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19).
10. The Courts have found that it is a judgement for a council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
11. Councils must have regard to the statutory guidance “Ensuring a good education for children who cannot attend school because of health needs”. This makes it clear that Councils are not expected to become involved in situations where a child can still attend school with some support, or where a school has made arrangements to deliver suitable education outside of school. We would expect the Council to provide evidence that it has objectively considered whether the education arranged by the school is suitable in situations where it has decided not to arrange alternative education.
12. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong.
13. In this case, the Council has considered information from Mrs X and Y’s school. It has decided there is no duty to provide alternative provision as Y’s absence is not due to exclusion or illness. It has decided there are no other reasons Y cannot attend school and she has a suitable school placement available.
14. In reaching the above decision, the Council took account of the relevant guidance, information from the school, and other people involved with Y. It is unlikely our investigation would find that the Council had not followed the appropriate procedures when making its decision. We cannot therefore criticise the decision itself. If we investigated, it is unlikely we would find fault.
15. Also, at the heart of this complaint, is a disagreement about the content of Y’ EHC Plan. Mrs X contends the school named is not suitable and because of that Y is not attending. The Council disagrees the school is unsuitable, and that position is directly linked to its decision not to provide alternative provision. Parents who are unhappy with the content of an EHC Plan have a right of appeal to the SEND Tribunal. It is the mechanism established by Parliament for parents to challenge such decisions. The Tribunal can decide if the EHC Plan should be changed. The Ombudsman cannot. It is therefore reasonable for Mrs X to use her right of appeal to the SEND Tribunal. This is another reason why we will not investigate.

Back to top

Final decision

16. We will not investigate Mrs X’s complaint because if we were to investigate it is unlikely we would find fault. It is reasonable for Mrs X to challenge the content of her daughter’s EHC Plan by an appeal to the SEND Tribunal.

Back to top

Investigator's decision on behalf of the Ombudsman