Decision : Closed after initial enquiries
Decision date : 31 Aug 2021
The Ombudsman's final decision:
Summary: We will not investigate Mr B’s complaint about the Council’s actions in respect of his son’s special educational needs. This is because it is unlikely investigation would identify fault on the Council’s part causing injustice, and we cannot achieve what Mr B wants.
- The complainant, who I will refer to as Mr B, complains that the Council:
- failed to inform him about a letter from the school his son subsequently attended,
- unreasonably defended his appeal to the SEND Tribunal,
- failed to implement the SEND Tribunal's decision, and
- threatened him with imprisonment.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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 not enough evidence of fault to justify investigating, or
- any fault has not caused injustice to the person who complained, or
- further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))
- We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
- The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
- We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
- 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.
How I considered this complaint
- I considered information provided by the complainant.
- I considered the Ombudsman’s Assessment Code.
- I considered the complainant’s comments on my draft decision before making a final decision.
- The complainant’s son has special educational needs and an Education Health and Care Plan. In 2018, the Council placed his son at a school. Mr B agreed with the placement, but says the school turned out to be inappropriate for his son.
- In the course of a subsequent appeal to the SEND Tribunal, Mr B became aware of a letter from the school to the Council during the EHCP consultation process. He says the letter expressed the school’s view that it was not an appropriate setting for Mr B’s son. Mr B argues that the Council was at fault in failing to disclose this letter and that, in failing to do so, it knowingly supported an inappropriate placement. He says that, if he had seen the letter, he would not have accepted the placement.
- We will not investigate this aspect of the complaint. The placement was appealable to the SEND Tribunal and the Ombudsman does not normally investigate complaints where appeal rights exist. I understand that Mr B was not in a position to appeal because he had expressed a preference for a placement at the school and was unaware of the views the school had expressed. But this does not mean the Ombudsman should intervene.
- The Council has set out that it did not regard the school’s views as an impediment to complying with Mr B’s expressed preference. That was a matter for the professional judgement of the officers concerned. Mr B disagrees, but it is not for the Ombudsman to substitute an alternative view to the one the officers took. We cannot therefore find that the decision to place Mr B’s child at the school amounted to fault, despite the school’s expressed views. It was not the fact that the Council did not disclose the letter which led to the placement, and the Ombudsman cannot criticise the officers’ decision to name the school in the EHCP. Therefore, the fact that the letter was not disclosed did not cause the injustice Mr B attributes to it.
- Mr B appealed to the SEND tribunal against the content of a subsequent EHCP. He complains that the Council unreasonably defended the appeal. We cannot investigate this matter. Once an appeal to SEND is made, we have no jurisdiction to consider anything relating to it. This includes the conduct of the Council in responding to the appeal. There is no discretion available to us here.
- Mr B further complains about the Council’s initial failure to implement the SEND Tribunal’s findings in full, in that it refused to provide school transport. He says that, in correspondence on the matter, the Council said he could face imprisonment if he failed to make transport arrangements himself.
- By law, we cannot investigate the failure to provide transport. This is because Mr B initiated Judicial Review proceedings on the matter. This is the case even though the matter did not proceed to a full hearing. With regard to the threat of imprisonment, the Council has already upheld Mr B’s complaint and has apologised. There is therefore no merit in further investigation. Mr B wants the Council to pay substantial compensation. It is not the Ombudsman’s role to recommend punitive compensation. We cannot therefore achieve the outcome Mr B is seeking. If Mr B believes the Council’s actions warrant the payment of damages, he may wish to pursue the matter in court.
- We will not investigate this complaint. This is because it is unlikely investigation would identify fault causing injustice, and we cannot achieve what Mr B wants. investigate this complaint.
Investigator's decision on behalf of the Ombudsman