The Ombudsman's final decision
Summary: We cannot investigate this complaint about the Council’s decision not to provide alternative education provision for Miss X’s son. This is because Miss X appealed the Council’s decision not to issue an Education, Health, and Care Plan and the substance of her complaint is not separable from her appeal. Nor will we investigate her complaint about any delays in the Council giving her this decision, because there is not a significant enough injustice to warrant an investigation.
The complaint
Miss X said the Council should have provided alternative education provision for her son when he was not attending school. She also told the Council she was unhappy it delayed giving her a decision it would not issue an Education, Health, and Care (EHC) Plan for her son. Miss X said these issues have caused her stress and delayed her right to appeal the Council’s decision.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916) 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 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) 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 any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B).
How I considered this complaint
I considered information provided by Miss X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Following an EHC needs assessment, in March 2024, the Council told Miss X it would not issue an EHC Plan. It then followed this up around two weeks later and set out how Miss X could appeal that decision. Miss X then appealed to the SEND Tribunal and said she believed her son’s needs could not be met in a mainstream education placement. She said he would require an EHC Plan to meet his special educational needs.
Miss X subsequently complained to the Council because it had not dealt with her request for alternative education provision while her son was not at school. She was also unhappy with the way the Council handled the EHC needs assessment.
The Council replied, saying it had previously made a school place available and Miss X had chosen not to send her son there. It also apologised for the way it had dealt with the EHC needs assessment.
We cannot investigate Miss X’s complaint about alternative education provision. This is because she appealed the Council’s decision not to issue an EHC Plan, saying she believed her son could not go to a mainstream school. Miss X’s dispute related to the Council’s offer of a school and is not separable from her appeal grounds. This was also a matter which the SEND Tribunal would be expected to consider. Therefore, because of the reasons I have highlighted at paragraph three and five, we cannot investigate here.
The Council’s decision not to issue an EHC Plan was around four weeks late and then Miss X was given a formal letter allowing her to appeal to the SEND Tribunal about two weeks after that. I am satisfied any injustice Miss X had here, is not significant enough to justify an investigation.
Final decision
We cannot investigate Miss X’s complaint because we have no jurisdiction to consider the matter further.
Investigator's decision on behalf of the Ombudsman