The Ombudsman's final decision
Summary: We will not investigate this complaint about Mrs X’s son not being in full time education and not receiving the special educational needs provisions set out in his Education, Health, and Care plan. This is because the complaint is outside of the Ombudsman’s jurisdiction and because there is nothing an investigation could achieve at present.
The complaint
Mrs X complains about her son not being in school full time since March 2022, and that the Council has not intervened to ensure he receives full time education. She also complains her son has not received the special educational needs (SEN) provisions set out in his Education, Health, and Care (EHC) plan.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) 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.
The Ombudsman investigates 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 may decide not to continue with an investigation if we decide further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs X’s son, A, has an EHC plan which names a type of school. A was attending a school, but Mrs X said the school accepted it could not meet A’s needs.
Mrs X confirmed she has appealed the Council’s decision to name a type of school on her son’s EHC plan to the SEND tribunal. As Mrs X has used her right of appeal, her complaint about her son not attending school full time is out of the Ombudsman’s jurisdiction and we cannot investigate this element of her complaint.
Most of A’s SEN provisions were to be delivered within a school setting. As A is not attending school, even if the Council has secured his SEN provisions, he would not be able to receive them.
Therefore, there is nothing an investigation can achieve at present until A’s school placement is decided. Once the matter of A’s school place is decided by the Tribunal, we would expect the Council to secure his SEN provisions without delay.
Final decision
We will not investigate Mrs X’s complaint about her son not being in school full time as it is outside the Ombudsman’s jurisdiction as she has appealed to the SEND tribunal. We will not investigate her complaint about her son not receiving his SEN provisions as outlined in his EHC plan as there is nothing an investigation could achieve at present.
Investigator's decision on behalf of the Ombudsman