The Ombudsman's final decision
Summary: We will not investigate this complaint the Council delayed in updating its policy about free school meals. There is not enough evidence of fault to justify our investigation.
The complaint
Ms X complained the Council had delayed in introducing a policy for free school meals, for children with an Education, Health and Care (EHC plan) plan, who received education otherwise than at school (EOTAS). She wants the Council to provide backdated funding to 2022, and provide compensation for years of distress, she said the Council had caused by denying this funding sooner.
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 about the same matter. 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) 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 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))
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
We will not investigate Ms X’s complaint the Council delayed in updating its policy around free school meals for children who were EOTAS. The Government introduced the non-statutory guidance (the Guidance) in March 2024; the Council updated its policy in June 2024. We would not consider three months a significant delay. The Council has agreed to backdate the payments to the date the Government issued the Guidance. There is not enough evidence of fault to justify our involvement.
We cannot investigate Ms X’s complaint the Council will not backdate funding until 2022. Ms X previously challenged the Council’s decision not to provide free school meals at the SEND Tribunal. We have no jurisdiction to consider matters that have been considered by the court.
In addition, the Council has applied the Guidance when developing its policy. The Guidance states that payments for EOTAS are discretionary. The Council has decided not to make retrospective payments. Although Ms X disagrees strongly with that decision, it is unlikely we would find fault in how it was made.
Final decision
We will not investigate Ms X’s complaint because there is not enough evidence of fault to justify our involvement.
Investigator's decision on behalf of the Ombudsman