Summary: We will not investigate Mrs X’s complaint that the Council delayed assessing the special educational needs of her son and has not provided alternative education during her appeal to the special educational needs Tribunal. Mrs X may return to us about the delayed assessment at the end of the Tribunal. We cannot investigate the period of the appeal including whether the Council should provide alternative education.

The complaint

1. Complaint 1: Mrs X complains the Council unreasonably delayed in assessing the educational and health care needs of her son, Child A. Mrs X says she requested an assessment in July 2020 but the Council failed to provide the final educational health care plan until May 2021. Mrs X says the Council has accepted it delayed but its offer of compensation is not adequate.
2. Complaint 2: Mrs X complains the Council’s assessment of her son’s educational needs was flawed and it has named a school which is not suitable. Mrs X says she has appealed to the special education needs Tribunal but the Council’s actions have resulted in Child A not having a suitable educational place at the start of his secondary school. Mrs X says the Council has caused time, trouble and distress to her and Child A. She wants the Council to provide alternative education, such as a home tutor or personal budget, pending the outcome of the Tribunal.

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The Ombudsman’s role and powers

3. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)

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How I considered this complaint

6. I have considered Mrs X’s information and comments. I have discussed the complaint with her by telephone. I have considered the Council’s reply to her complaint dated 27 May 2021.

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My assessment

7. I will not investigate this complaint for the following reasons:
8. Mrs X has appealed to the Special Educational Needs and Disability (SEND) Tribunal regarding the Council’s assessment and named school. I consider it is not appropriate to investigate the first complaint about delay in the assessment until the outcome of the Tribunal is known. The timing and decision of the Tribunal may be relevant to the assessment of injustice. Mrs X can complain to the Ombudsman again once the appeal is concluded.
9. The Ombudsman cannot investigate a complaint where a person uses a right of appeal to a tribunal (see paragraph 4 and 5 above). The period from when the appeal right arose is outside our jurisdiction. This includes the named school and whether the Council should provide alternative education.

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Final decision

10. The Ombudsman will not investigate Mrs X’s complaint the Council delayed assessing the special educational needs of her son and has not provided alternative education during her appeal to the special educational needs Tribunal. Mrs X may return to us about the delayed assessment after the end of the Tribunal. We cannot investigate the period of the appeal including whether the Council should provide alternative education.

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Investigator's decision on behalf of the Ombudsman