• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Final decision

The Ombudsman's final decision:

Summary: We cannot investigate this complaint about the Council’s special educational needs provision for Mr Y’s son. This is because Mr Y has appealed to a tribunal and we cannot achieve the outcome he wants.

The complaint

1. Mr Y complains the Council failed to make suitable provision for his son, who has an Education, Health and Care (EHC) Plan. He complains he paid for expert reports, which the Council did not dispute at tribunal and the Council failed to adhere to the tribunal order within the required timescale.
2. Mr Y says he spent over £4,000 for expert reports and his son lost out on provision.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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 we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

7. I spoke to Mr Y and considered the information he and the Council have provided. Mr Y had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

8. Mr Y’s son has an EHC Plan. Mr Y says the EHC Plan said his son needed regular occupational therapy. He says this was not provided for a term due to staff shortages. Mr Y went to the SEND tribunal about the provision offered in the EHC Plan and the Council’s failure to provide suitable support for his son.
9. Mr Y says the Council repeatedly missed deadlines in relation to the tribunal and failed to engage in the process. The tribunal then barred the Council in January 2020 from further participation in the appeal after it failed to comply with two orders made by the tribunal without providing representations on why it had not complied. Mr Y also says he commissioned three expert reports, costing him over £4,000 to ensure his son was properly assessed and his needs could be identified and met. He feels the Council should pay for these costs as he believes the Council should have correctly assessed his son’s needs at the outset.
10. When the tribunal heard Mr Y’s appeal in March 2020 it made various directions, including for provision to be made and increased. It also ordered the Council to provide Mr Y and his son’s school with an updated EHC Plan within five weeks. Mr Y says the Council failed to do this. He also says his son was not given the full provision for occupational therapy by the Council.
11. Mr Y says he applied for costs to be awarded against the Council so it would pay the costs for the expert reports. However, the tribunal dismissed his claim for costs. Mr Y says his son has been receiving the provision made in his EHC Plan in full since September and is not in need of further provision to make up the time he missed. Mr Y says he approached the Ombudsman to try to recoup the money he spent on expert reports.

Analysis

12. We cannot consider a complaint about special educational needs (SEN) provision where the matter has been considered by a tribunal. In this case both the lack of provision and the contents of the EHC Plan outlining what provision should be made has been considered by the tribunal. We therefore cannot consider Mr Y’s complaint about this.
13. The tribunal specifically considered Mr Y’s application for costs against the Council for the expert reports and dismissed the application. We cannot now recommend this as a remedy to Mr Y’s complaint. As we cannot achieve the outcome Mr Y is seeking, we will not investigate this complaint.

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Final decision

14. The Ombudsman cannot investigate this complaint. This is because we cannot investigate a complaint if someone has appealed to a tribunal and cannot achieve the outcome Mr Y wants.

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Investigator's decision on behalf of the Ombudsman

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