Summary: The Ombudsman will not investigate Miss X’s complaint about the Council’s provision for her son’s special educational needs. This is because it is reasonable for Miss X to use her right to appeal to the Special Educational Needs and Disability Chamber of the First Tier Tribunal.

The complaint

1. Miss X complains the Council is not providing one-to-one swimming lessons for her son. Miss X thinks the lessons are needed to meet her son’s needs as set out in his Education, Health and Care (EHC) Plan.

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The Ombudsman’s role and powers

2. 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, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal.

(Local Government Act 1974, section 24A(6), as amended)

3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. SEND is a tribunal that considers special educational needs (SEN). (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))

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How I considered this complaint

5. I considered Miss X’s complaint to the Ombudsman and the information she provided. I also gave Miss X the opportunity to comment on a draft statement before reaching a final decision on her complaint.

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What I found

6. Miss X wants the Council to provide one-to-one swimming lessons for her son (Y). She thinks the lessons are needed to meet Y’s needs as set out in his Education, Health and Care (EHC) Plan. Miss X has sent the Council information in support of her request.
7. The Council says it has not received evidence from a professional which shows Y needs swimming lessons over and above those he receives in school. The Council says it will not fund private swimming lessons because they are not a provision contained in Y’s EHC Plan. It says that other children in Y’s school may have a personal budget for swimming lessons. But this does not mean Y requires the same support.
8. The role of the Ombudsman is to look for administrative fault. We do not investigate all the complaints we receive. In deciding whether to investigate, we need to consider the other options available to the person complaining.
9. When a child has an EHC Plan, their school, or other educational provision, is named in the plan. The Ombudsman does not investigate complaints about the content of EHC Plans.
10. Miss X can ask the Council to reassess her son’s special educational needs. If the Council declines to do so, or if it does so and she disagrees with the provision it proposes, she may appeal to SEND. I consider it is reasonable for Miss X to do so. This is because SEND’s remit is to consider the content of a child’s EHC Plan. The Ombudsman cannot say what provision should be included in a child’s EHC Plan. We cannot achieve the outcome Miss X wants and so an investigation is not therefore appropriate.

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Final decision

11. The Ombudsman will not investigate Miss X’s complaint. This is because it is reasonable for Miss X to use the appeal rights available to her.

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Investigator's decision on behalf of the Ombudsman