Decision : Closed after initial enquiries
Decision date : 19 Sep 2018
The Ombudsman's final decision:
Summary: The Ombudsman cannot investigate Mrs X’s complaint about the Council’s special educational needs decisions. The law prevents us from investigating issues which have been appealed to a Tribunal.
- The complainant, whom I shall call Mrs X, says the Council avoidably delayed in processing her child, B’s, Education Health and Care Plan (EHCP).
The Ombudsman’s role and powers
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
How I considered this complaint
- I considered the information Mrs X provided with her complaint and the Council’s responses to her complaint which it provided. I discussed a draft version of this decision with Mrs X.
What I found
- Mrs X says B’s school asked the Council to assess B’s special educational needs. She says the Council refused. Mrs X appealed the Council’s decision to SEND. Mrs X says the Council agreed to assess B before the Tribunal hearing.
- Following the assessment, the Council decided not to issue an EHCP. Mrs X appealed that decision to SEND. Before the Tribunal oral hearing the Council agreed to issue an EHCP.
- Mrs X disagreed with the EHCP wording. She said it did not meet B’s needs and was inadequate. She appealed to SEND. The Council and Mrs X agreed amendments.
- Mrs X says the whole process has taken over a year. The EHCP Code says from the date the assessment is requested, the final EHCP should be provided within 20 weeks. Mrs X says the Council avoidably delayed by extending that timescale by forcing Mrs X to appeal. She says at each stage the Council caused the appeal by issuing indefensible decisions.
- The Courts decided, in a case put before them, that we cannot investigate the effects of a decision, if the decision itself has been appealed to a Tribunal. There may be matters which are connected to a decision which have been appealed which we cannot look at even though the Tribunal cannot either.
- This Court ruling applies to Mrs X’s complaint. The decisions she complains of, not to assess, not to issue an EHCP and the EHCP content, were all appealed. This means we have no power to investigate the delay the appeal caused or why the Council made those decisions.
- The Ombudsman cannot investigate this complaint. This is because Mrs X appealed the decisions she complains of to a Tribunal.
Investigator's decision on behalf of the Ombudsman