Summary: The Ombudsman will not investigate Mr B’s complaint that the Council’s Special Educational Needs Local Offer does not comply with the Council’s obligations and is unlawful. This is because any injustice to him flows from a decision about which it would have been reasonable for him to use his right to appeal to a tribunal.

The complaint

1. The complainant, who I will refer to as Mr B, complains that the Council’s Special Educational Needs Local Offer does not comply with the Council’s obligations and is unlawful.

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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 the fault has not caused injustice to the person who complained. (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. (The Special Educational Needs and Disability Tribunal (‘SEND’))

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How I considered this complaint

5. I have considered what Mr B has said in support of his complaint. I have also spoken with him and considered his response to my draft decision.

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What I found

6. Mr B’s son has special educational needs. Mr B asked to Council to assess his son’s special educational needs in order to issue an Education Health and Care Plan (EHCP). The Council initially declined. Mr B argues that the decision to refuse to assess was based on the application of the wrong threshold, which results from the fact that Council’s Special Educational Needs Local Offer does not comply with its obligations and is unlawful.
7. After mediation, the Council agreed to carry out an assessment. But Mr B argues that the initial decision to assess delayed the process unnecessarily, thereby delaying the provision of appropriate support for his son. He argues that the fault he has identified on the Council’s part unreasonably disadvantages parents and children seeking assessment.
8. The Ombudsman will not investigate Mr B’s complaint. Mr B argues that there is a causal link between the fault he identifies and the injustice he says he was caused. But the alleged injustice flowed directly from the decision to refuse to assess his son for an EHCP. The Ombudsman will not consider the reasons for that decision because Mr B could have appealed against it.
9. At the point at which the Council decided not to assess, Mr B’s appeal rights were engaged. The Ombudsman normally expects appeal rights to be used when they are available, and it would have been reasonable for Mr B to do so if mediation had failed. SEND is the appropriate body to consider whether the decision to decline to assess was correct and, flowing from that, whether the correct threshold was applied.
10. Mr B contends that we should use the power available to us to consider the content of the Local Offer because members of the public who have not complained may have suffered injustice as a result of the alleged fault. We will not do so, precisely because any member of the public who suffers injustice in the same way as Mr B says he has will have the same right to appeal. The Ombudsman would normally expect them to use that right. There are therefore insufficient grounds for the Ombudsman to intervene.

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Final decision

11. The Ombudsman will not investigate this complaint. This is because any injustice to him relates to a decision about which it would have been reasonable for him to use his right to appeal to a tribunal.

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Investigator's decision on behalf of the Ombudsman