Summary: The Ombudsman cannot investigate this complaint about the Council’s refusal to reimburse Mrs X’s costs incurred as part of a Tribunal hearing. This is because the complainant could have applied to the Tribunal for costs and it would have been reasonable to expect her to do so.

The complaint

1. The complainant, who I refer to here as Mrs X, complains that the Council has refused to cover her costs in preparing for a Special Educational Needs and Disability Tribunal (SEND Tribunal) and a connected judicial review claim.

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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 or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), 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)

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How I considered this complaint

6. I considered the information and evidence provided by Mrs X and the Council. I sent Mrs X a draft decision.

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What I found

7. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. The SEND Tribunal can direct changes to the sections about education, or name a different school. It can also make an order as to costs.
8. In June 2017, the Council decided to cease to maintain Mrs X’s daughter’s EHC Plan.
9. Mrs X successfully appealed to the SEND Tribunal against the Council’s decision. She incurred legal costs in appealing the Council’s decisions as well as costs to obtain three independent medical reports.
10. Mrs X also made a judicial review claim. She was seeking an order for the Council to make education provision for her daughter pending the outcome of the SEND Tribunal appeal. No order as to costs was made by the High Court when Mrs X withdrew her claim. As this matter has already been decided by a court, the Ombudsman cannot consider this aspect of Mrs X’s complaint.
11. Mrs X complains that the SEND Tribunal process cost her a great deal and the Council has refused to cover the costs. The Council has responded to Mrs X saying that it will not cover her costs as she could have made an application for costs to the SEND Tribunal. The Council says its records show that no such application was made. It says that it was Mrs X’s legal representative’s responsibility to advise her on this matter.

Analysis

12. I understand that Mrs X is unhappy that the Council has refused to cover the costs she incurred in appealing its decision to cease to maintain her daughter’s EHC Plan. However, Mrs X had a right to apply to the SEND Tribunal for costs, which she did not use. Only the Tribunal has the power to determine if costs should be paid and so it would have been reasonable to expect Mrs X to apply. This means the Ombudsman cannot investigate this complaint.
13. I also think there is no evidence of fault in how the Council reached its decision. This is because it has fully considered Mrs X’s request for costs and provided reasons for its refusal. An investigation is therefore not warranted.

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Final decision

14. The Ombudsman cannot investigate this complaint. This is because Mrs X could have applied to the SEND Tribunal for costs and it would have been reasonable to expect her to do so.

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Investigator's decision on behalf of the Ombudsman