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East Riding of Yorkshire Council (19 006 246)

Category : Education > Special educational needs

Decision : Closed after initial enquiries

Decision date : 15 Jan 2020

The Ombudsman's final decision:

Summary: The Ombudsman has discontinued his investigation into Mr & Mrs C’s complaint about how the Council dealt with matters relating to their son’s education. This is because a tribunal has already considered many of the matters which Mr & Mrs C raised, and it is unlikely the Ombudsman would find fault with other matters raised.

The complaint

  1. The complainants, whom I shall refer to as Mr & Mrs C, complain about how the Council dealt with matters relating to the education of their son, whom I shall refer to as Z.
  2. Mr & Mrs C complained about a number of issues relating to how the Council dealt with Z’s Education Health & Care Plan (EHCP).
  3. The Council has upheld some of the complaints, apologised and offered payments to Z and his parents, to reflect the distress caused by its faults.
  4. However, the Council did not investigate many of the issues raised due to the issues having been considered at Tribunal.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  4. 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)
  5. 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

  1. I have:
    • Read Mr & Mrs C’s complaint and the documents they submitted in support of it.
    • Sent both parties a draft version of this document and invited their comments on it.

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What I found

  1. In February 2019, Mr & Mrs C complained to the Council about matters relating to how it had handled their son, Z’s, Education Health & Care Plan (EHCP).
  2. In March 2019, a Special Educational Needs and Disability (SEND) Tribunal hearing took place.
  3. The Council subsequently provided responses to Mr & Mrs C’s complaint at stages 2 & 3 of its complaints process.
  4. Many of the issues raised by Mr & Mrs C related to how the Council had dealt with Z’s EHCP and how it had handled matters relating to the SEND Tribunal. These include:
    • Failure to follow the direction of the tribunal directions, prior to the hearing.
    • Failure to provide information to Mr & Mrs C and the tribunal in time.
    • Failure to provide documents to Mr & Mr C and the tribunal in a suitable format.
    • Inaccurate and incomplete information sent to tribunal.
    • Unprofessional conduct of officer at tribunal hearing.
    • Council should pay Mr & Mrs C costs they incurred as a result of tribunal hearing.
  5. The Council said it would not investigate these matters, as they had already been considered as part of the tribunal hearing. It did accept that errors had been made in the production of paperwork for the hearing and said it had made changes to its systems to ensure this did not happen in the future.
  6. The Council did investigate and uphold one of Mr & Mrs C complaints. It accepted that actions agreed in a mediation meeting had not been completed within agreed time frames.
  7. The Council offered to make payments of £200 each to Z, Mr C & Mrs C to reflect the distress they had suffered outside of the tribunal process.

Analysis

  1. The law states the Ombudsman cannot investigate a complaint if someone has appealed to a tribunal. In this case, nearly all Mr & Mrs C’s complaint refer to matters either already considered by the SEND Tribunal or matters that could have been raised during the tribunal. Therefore, I cannot investigate these parts of the complaint.
  2. The other part of the complaint is the remedy the Council proposed. Mr & Mrs C say they believe the Council should offer each of them payments of £500.
  3. The Ombudsman’s remedy guidance says that any remedy should reflect the circumstances of the case, including the severity of the distress and the length of time involved. It says payments are often between £100 and £300.
  4. Having considered this guidance and having considered the elements of Mr & Mrs C’s complaints which the Council has upheld, and which the Ombudsman can investigate, I conclude that any further investigation into how the Council considered the remedy payments is unlikely to lead to a finding of fault.

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Final decision

  1. The Ombudsman has discontinued his investigation

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Investigator's decision on behalf of the Ombudsman

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