Summary: We will not investigate this complaint about delay in meeting a child’s special educational needs. Most of the matters complained of are not separable from the dispute over what the child’s needs are, which has been subject to appeals to the Special Educational Needs and Disability Tribunal. We could not achieve a worthwhile outcome by investigating the remaining matters, which are minor.

The complaint

1. Miss X said the Council has denied her daughter appropriate resources to meet her special educational needs (SEN) since diagnosis in 2017.

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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 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)
6. 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:

• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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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.

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My assessment

9. There has been a series of appeals by Mrs X since 2017 against the Council’s refusal to assess her daughter’s SEN. Until late 2021, when the Council conceded the latest appeal, these have been unsuccessful. Whether Mrs X’s daughter has SEN, and what her SEN are, have been subject to appeals and are still subject to an appeal to the SEND Tribunal. We have no role here, even if a SEND Tribunal were to decline to recommend any payment of costs.
10. The Council told Mrs X it accepted it took 15 days too long to tell her of a decision not to assess her daughter in September 2021. It offered her £200 for this and delays in responding to her complaint. We would be unlikely to recommend more if we investigated.
11. Mrs X has made a separate complaint about what was said to her daughter at a tuition session in December 2018. The Council should complete its complaints process about that matter. When it does so, Mrs X is welcome to approach us, if she does so promptly after the Council’s final response.

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Final decision

12. We will not investigate Mrs X’s complaint because we could not achieve a worthwhile outcome. The disputed matter of her daughter’s SEN has been and remains a matter for the SEND Tribunal. And investigating the remaining matters would not lead to any worthwhile outcome.

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Investigator's decision on behalf of the Ombudsman