Summary: The Ombudsman will not investigate Mrs X’s complaint about the Council’s decision not to issue her son with an Education Health and Care Plan. This is because it is reasonable for Mrs X to appeal to the SEND tribunal. Mrs X’s complaint about data protection issues is a matter for the Information Commissioner’s Office.

The complaint

1. Mrs X complained about the Council’s decision not to issue her son with an Education, Health and Care (EHC) Plan. Mrs X also complained the Council has wrongly shared information about her son with a third party.

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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. 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.
5. The Ombudsman investigates 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. We do not start or may decide not to continue with an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6))
6. We normally expect someone to refer the matter to the Information Commissioner’s Office (ICO) if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.
9. I gave the complainant the opportunity to comment on a draft decision and took into account any comments received.

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My assessment

10. Mrs X has asked the Council to assess her son and prepare an EHC Plan. The Council has decided not to issue an EHC Plan. Mrs X disagrees with the decision and the information the Council has relied on.
11. As explained in paragraph 3 we will not normally investigate a complaint where someone can appeal to a court or tribunal about the same matter. We have discretion to set aside this rule where we decide there are good reasons. We will not do that here because:
• It is reasonable to expect Mrs X to appeal to the SEND tribunal; and
• there are no good reasons why appealing to the tribunal is not suitable.
12. The ICO is the UK’s independent authority set up to uphold information rights. It promotes openness by public bodies and protects the privacy of individuals. It deals with complaints about public authorities’ failures to comply with data protection legislation. This includes disclosing information in error.
13. There is no charge for making a complaint to the ICO, and its complaints procedure is relatively easy to use. Where someone has a complaint about data protection, the Ombudsman usually expects them to bring the matter to the attention of the ICO. This is because the ICO is in a better position than the Ombudsman to consider such complaints. There is no reason Mrs X should not approach the ICO about her concerns and so we will not investigate.

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Final decision

14. We will not investigate Mrs X’s complaint. This is because it is reasonable for Mrs X to appeal to the SEND tribunal. Mrs X’s complaint about data protection issues is a matter for the Information Commissioner’s Office.

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Investigator's decision on behalf of the Ombudsman