Decision : Closed after initial enquiries
Decision date : 28 Oct 2020
The Ombudsman's final decision:
Summary: The Ombudsman cannot investigate Mr X’s complaint about the adequacy of an Education Health and Care Plan as Mr X appealed to the Tribunal. We should not investigate his safeguarding referral complaint as it is unlikely we would find significant personal injustice separable from the education provision.
- The complainant, whom I shall call Mr X, complains that he had to appeal to a Tribunal, the Council delayed within that Tribunal and that it failed to reply to a safeguarding referral.
The Ombudsman’s role and powers
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
- 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 injustice is not significant enough to justify the cost of our involvement, or
- it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- I considered the information Mr X provided with his complaint which included the Council’s replies to him. I considered Mr X’s comments on a draft version of this decision.
What I found
- Mr X’s child, Y, has an Education Health and Care Plan (EHC Plan). In August 2019, Mr X appealed to SEND the EHC Plan wording including the school named as suitable. He had withdrawn Y from the named school, School Z, in July. He says he then made a complaint to the Council about safeguarding concerns within School Z.
- Mr X says he should never have had to appeal to SEND. He says the Council agreed to his wishes in June 2020 without any significant further information or evidence. He also says the Council delayed the Tribunal process by not providing the required documents on time.
- Mr X says that he did not receive a reply to his safeguarding complaint. Mr X says a subsequent Ofsted inspection into School Z covered his concerns.
- The Council in September 2020 told him that his safeguarding referrals had been dealt with properly.
- A child with special educational needs may have an 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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
- As Mr X appealed, we cannot investigate if the proposed EHC Plan in August 2019 was appropriate. We also cannot investigate how the Council acted within those proceedings including the provision of its evidence and documents.
- It is unlikely we could achieve a significant outcome for Mr X for his safeguarding complaint. Mr X accepts Ofsted have considered his concerns. It is not clear Mr X suffered any personal injustice following his referral other than a delay in the Council replying to him. Mr X says the delay or lack of considering his safeguarding is a reason why the proposed EHC Plan was wrong and why Y missed out on education. We cannot look at the adequacy of the proposed EHC Plan as Mr X appealed this. Y’s education provision is being considered as a separate complaint.
- 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.
- The Ombudsman will not and cannot investigate this complaint. This is because we cannot investigate the EHC Plan adequacy as Mr X appealed to the Tribunal and it is unlikely our investigation into Mr X’s safeguarding complaint could find any separable significant injustice.
Investigator's decision on behalf of the Ombudsman