Decision : Closed after initial enquiries
Decision date : 05 Dec 2020
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate Miss B’s complaint that the Council has been at fault in the process of identifying an appropriate school place for her son. This is because it was open to her to appeal about the outcome of the process to the Special Educational Needs and Disability Tribunal and it would have been reasonable for her to do so.
- The complainant, who I will refer to as Miss B, complains that the Council has been at fault in the process of identifying an appropriate school place for her son.
The Ombudsman’s role and powers
- 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)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
How I considered this complaint
- I have considered what Miss B has said in support of her complaint and in response to my draft decision. I have also considered relevant correspondence provided by the Council.
What I found
- Miss B’s son has special educational needs and an Education Health and Care Plan. Miss B complains about the process leading to the Council’s decision not to place her son in the school of her choice. She argues that that the school placement the Council has made for her son is inappropriate. Miss B questions why the Council has decided the school can meet her son’s needs, when the school has told her it cannot. She believes the Council should have questioned information given by the school earlier in the process.
- The Ombudsman will not investigate Miss B’s complaint. The outcome of the alleged fault she identifies is the school placement. This is a matter about which Miss B had the right to appeal to SEND.
- The complaint correspondence shows that the Council issued an amended final EHCP in July 2020, naming the school Miss B regards as inappropriate. From that point, Miss B had the right to appeal to SEND against the content of the EHCP, and for the school of her choice. Where appeal rights are available, the Ombudsman normally expects them to be used. It would have been reasonable for Miss B to have used her right to appeal. We cannot therefore question how the Council made the decision to name the school.
- The Ombudsman will not investigate this complaint. This is because it would have been reasonable for Miss B to use her right to appeal.
Investigator's decision on behalf of the Ombudsman