Summary: We will not investigate Ms X’s complaint about special educational needs provision and assessments. The issues are either being considered by a Tribunal or are not separable from that appeal.

The complaint

1. The complainant, whom I shall call Ms X complains about the Council’s education provision to her child D, and the Council’s assessments of D’s needs.

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The Ombudsman’s role and powers

2. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
3. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I considered information provided by Ms X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Ms X says that the Council failed to properly assess D’s needs including an educational psychologist’s views. D has an Education Health and Care Plan (EHC Plan). Ms X says the Council’s failures meant D has had to repeat year six and has no provision set up for September 2021.
8. Ms X appealed to SEND in June 2021 the Council’s decision on D’s education in April 2021. The Tribunal is considering what provision D should have and where this should be based. The Tribunal has referred to the educational psychologist’s input.
9. We cannot investigate the same issues the Tribunal is considering. This means we cannot consider if the provision on offer is suitable or what would be a suitable provision.
10. In addition, the Courts have said that we cannot investigate the effects of a decision if investigation of the decision itself is excluded from our investigation. This means we cannot investigate matters which are not separable from the appeal. This includes that we cannot investigate the provision the Council gave to D while the Tribunal is continuing.
11. It is not suitable to investigate any Council procedural delays before April 2021 as the effect of those delays will be not known until the Tribunal’s decision is announced and its then clear what provision D has missed.

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Final decision

12. We will not investigate Ms X’s complaint because the Tribunal is considering most of the issues and we cannot find out the injustice on any fault incurred before the appeal.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman