Summary: Mr X complains the Council did not consult him when dealing with matters relating to his education and misrepresented his views. He says he was not given an opportunity to provide his views and on the occasions he was, they were ignored. The Ombudsman has discontinued the investigation into this complaint. This is because a tribunal has already considered many of the matters which Mr X has raised in his complaint, which means we cannot consider them. Furthermore, it is unlikely we would be able to reach a finding of fault if we were to investigate the part of the complaint that we can consider.

The complaint

1. The complainant, who I shall refer to as Mr X, complains the Council did not consult him when dealing with matters relating to his education and misrepresented his views. He says he was not given an opportunity to provide his views and on the occasions he was, they were ignored. He states the matter has caused him significant stress and he wants the Council to apologise for its failures and tell him what it is going to do to ensure they do not reoccur. He also wants it to make a financial payment to him in recognition of the distress it caused.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. 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 it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
6. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

7. I have:
• Read Mr X’s complaint and the documents his representative submitted in support of it.
• Provided him, his representative and the Council with an opportunity to comment on the draft decision.

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What I found

8. At the beginning of March 2019, Mr X submitted a complaint to the Council which formed five parts. The first four parts related to a Special Educational Needs and Disability (SEND) Tribunal hearing which took place in mid-December 2018 and were about comments made by a Council officer during the hearing. The fifth part was about a meeting Mr X had with the officer on another occasion. He explained why he acted the way he did during the meeting and said the officer misrepresented what happened when reporting to her manager that she had felt threatened during the meeting.
9. At the beginning of April 2019, the Council responded to Mr X’s complaint and addressed each part in writing. When responding to the fifth part, it accepted it might not have been his intention to make the officer feel uncomfortable but stated she felt this way, regardless of his intentions. It added it was appropriate for the officer to discuss the matter with her manager and apologised if he felt he had been misrepresented. In conclusion, it did not find any fault in relation to this part of the complaint.
10. In the middle of the month, the PA’s representative wrote to the Council on his behalf to escalate the complaint. Regarding part five, she said the officer, who is an autism advisory teacher, should have been aware that autistic people such as Mr X often say things without considering the impact of their words on others. She noted the officer had corrected Mr X’s use of language during the meeting and he felt there was no need to escalate the matter by reporting it to her manager afterward, given the correction. She stated no threats had been made and said the officer’s actions were an attempt to detract from her denying Mr X his right to self-determinism and were the worst form of victim-blaming. She added the Council’s investigation of the matter did not seek Mr X’s views about what happened and had failed to address the points he had made in his complaint.
11. At the end of May 2019, the Council responded to the complaint. It accepted it needed to work harder to establish how it would communicate with Mr X, be it directly with him or through his representative. It apologised for not doing this previously and outlined what it would do to rectify the matter. Regarding the meeting, it acknowledged that Mr X disagreed with the officer’s account of what happened but asserted she was right to discuss the matter with her manager, given she felt threatened and upset. In addition, it disagreed it had not investigated the complaint properly and concluded the officer did not act “in any way that is unprofessional or which would warrant any further investigation or action”.
12. Mr X then complained to the Ombudsman about these matters.

Analysis

13. The law states the Ombudsman cannot investigate a complaint if someone has appealed to a tribunal. In this case, the first four parts of Mr X’s complaint refer to comments made by the Council officer during the SEND Tribunal hearing in mid-December 2018. Therefore, as the Tribunal has already considered these matters, I cannot investigate these parts of the complaint.
14. The other part of the complaint relates to the meeting between Mr X and the officer. Mr X’s representative states this meeting took place after the Tribunal hearing, which means I could potentially investigate the matter. However, I have decided not to because it is unlikely I would be able to reach a finding of fault. The officer states she felt threatened during the meeting and it would be very difficult to prove otherwise, if not impossible. Moreover, it would be just as difficult to establish what happened given Mr X and the officer both give contrasting accounts about what happened.
15. I understand Mr X also has concerns about the way the Council investigated his complaint. The Ombudsman will not investigate complaints about complaint handling, if we are unable to deal with the substantive issue. Therefore, I will not investigate this matter.

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Final decision

16. I have discontinued the Ombudsman’s investigation into this complaint. This is because a tribunal has already considered many of the matters which Mr X has raised in his complaint, which means I cannot consider them. Furthermore, it is unlikely I would be able to reach a finding of fault if I were to investigate the part of the complaint that we can consider.

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Investigator's decision on behalf of the Ombudsman