Decision : Closed after initial enquiries
Decision date : 04 May 2018
The Ombudsman's final decision:
Summary: The Ombudsman cannot investigate this complaint about an appeal for the complainant’s preferred school for his son to be named on the child’s Education and Health Care Plan (EHCP). This is because the complainant has exercised his right of appeal to the Special Educational Needs and Disability Tribunal, and the matter is therefore out of our jurisdiction.
- The complainant, who I refer to here as Mr E, says that:
- The Council refused to name his preferred school for his son in his EHCP;
- The Council’s officers were dishonest and obstructive in the way they prepared for his SEN Tribunal appeal hearing; and
- The Council has refused to reimburse his legal costs and fees paid for professional assessments.
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)
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- I considered the information provided by Mr E and by the Council. I have also sent Mr E a draft decision for his comments.
What I found
- Mr E has a son, S, who has special educational needs.
- Mr and Mrs E requested a statutory assessment for S in 2016. It was initially refused, but subsequently agreed.
- An EHCP was produced in May 2107, but then withdrawn in favour of an amended draft in June2017, following the consideration of additional evidence by the panel.
- Mr and Mrs E were not happy with the school named in the amended draft EHCP, and appealed to SENDIST. The appeal was heard in October 2017, and the Tribunal upheld the appeal. Mr and Mrs E’s preferred school was ordered to be named in the EHCP.
- Mr E complained to the Council about the conduct of its officers during the period leading up to the Tribunal hearing, as he felt some of their actions were dishonest and obstructive. The complaint was considered at stage two of the complaints procedures, but the majority of it was not upheld.
- Mr E has now complained to the LGSCO, but we are unable to investigate the complaint. This is because he has used his statutory right to complain to a Tribunal. Case law has established that once an EHCP is produced, the parent acquires appeal rights, and we cannot consider any of the Council’s actions in relation to the EHCP or the appeal process.
- Mr E also complained about the Council’s refusal to reimburse him for the costs and fees he has paid.
- The Council said it would not cover his legal fees as the Tribunal process was set up by parliament so as not to need legal representation. It said it would not reimburse him for fees for professional assessments as it would have carried out the same assessments, and it was his choice to commission his own.
- We will not investigate this part of the complaint as we cannot achieve the outcome that Mr E is looking for. We do not recommend re-imbursement of legal and assessment fees for the same reasons that the Council refused. If Mr E felt that there was good reason for him to be awarded costs, he could have asked the Tribunal to do so.
- The Ombudsman cannot investigate this complaint. This is because the complainant has used his right to appeal to a Tribunal on the substantive matter and we cannot achieve his desired outcome with regard to reimbursement of fees.
Investigator's decision on behalf of the Ombudsman