Summary: We will not investigate Mrs X’s complaint that the Council failed to meet her son’s special educational needs. There is insufficient evidence of fault to warrant investigation in the matters that are within our jurisdiction. Mrs X has also used her right to appeal against the Council’s decisions to the Special Educational Needs and Disability Tribunal. We are unable to consider what her son’s needs are and how the Council arrived at its decisions about them.

The complaint

1. Mrs X said the Council failed to provide a proper special educational needs service in regards to help and guidance she sought from the Council in relation to her son’s identified special educational needs. She said she had no option but to place her son in a school at which his needs would be met and has borne the full cost since the date of transfer.

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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. 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’))
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 read Mrs X’s complaint. I gave her an opportunity to comment on a draft decision.

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What I found

7. In April 2020 Mrs X asked the Council to assess her son’s special educational needs (SEN) for an Education Health and Care (EHC) Plan. She had earlier moved him to a private school as she said the provision in his previous mainstream school was inadequate and he was unhappy there. She wanted him to attend a suitable mainstream school.
8. The Council declined to assess Mrs X’s son’s SEN and opened her right to appeal against its decision to the SEND Tribunal. Matters Mrs X has raised, such as whether the Council should have assessed the child’s needs and who it should have consulted is not separable from the matter before the Tribunal. That is not for us to reach a view upon. The Council gave Mrs X a decision she could appeal against within the timescale laid out in the SEN Code 2015, so there was no delay, and I do not find the Council at fault here.
9. Mrs X’s appeal was successful. The SEND Tribunal ordered the Council in September 2020 to assess Mrs X’s son’s SEN. That does not create jurisdiction for us to find the Council at fault in terms of its decision not to assess.
10. In December 2020, the Council completed its assessment and decided the child did not need an EHC Plan. Again, it opened Mrs X’s right to appeal. At present time, she has appealed against the decision. Whether Mrs X’s son needs an EHC Plan, and which expert opinion should have been sought or preferred is not separable from the matter before the Tribunal. Again, it is not a matter for us. As the Council met the timescale required, I do not find it at fault here. And it would not create jurisdiction for us to find the Council at fault in terms of its decision not to issue an EHC Plan if the SEND Tribunal ordered the Council to issue a Plan.
11. Mrs X said she had no choice but to pay for private education for her son from September 2020. However, she could have applied for a place at a maintained school and the Council would have had a duty to offer one. Indeed, it advised her it would help if she wished to apply for a school place separately from the ongoing EHC process. That any offer might not have been the school she preferred does not mean the Council was at fault. This is because its duty concerning a child without an EHC Plan does not extend to meeting parental preference where the preferred school is full. Mrs X would have had a right of appeal to a school admission appeal panel against any refusal of a place.
12. Mrs X said the Council did not deal with her complaint properly. Where we find matters not to be fault or outside our jurisdiction, we do not usually consider complaint handling issues. There is no good reason to do so here.

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Final decision

13. We will not investigate this complaint. This is because there is insufficient evidence of fault to warrant investigation of the matters within our jurisdiction. And the Council’s choices about consultation and Mrs X’s son’s SEN are not separable from the matters where she has exercised her right of appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman