Summary: We will not investigate this complaint about the Council’s actions in meeting Mrs X’s child special educational needs. Her appeal to the Special Educational Needs and Disability Tribunal, though conceded by the Council, means she has had access to an alternative remedy and prevents us from considering related matters. There was no fault in the remainder of the Council’s actions.

The complaint

1. Mrs X said the Council caused her child to miss five months of education because it refused to let an educational psychologist assess her child, or to provide full-time education when her child was signed off sick by a doctor. She said it failed to provide reintegration at her child’s previous school when it said it would, or to take into account her child’s mental health. Mrs X said the Council failed to name the right educational provision for her child until she involved her local councillor.

Back to top

The Ombudsman’s role and powers

2. 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)
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. The courts have held that where someone has appealed to the SEND Tribunal, we have no authority to consider what educational provision should be made for the child concerned. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999);  R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407
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 not enough evidence of fault to justify investigating.

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

Back to top

How I considered this complaint

6. I considered information provided by the complainant.
7. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

8. The Council issued a final Educational Health and Care (EHC) Plan for Mrs X’s child on 1 September 2021. Even though the Council conceded Mrs X’s appeal against it just before the SEND Tribunal was due to sit, this means we have no authority to consider any lack of educational provision from 1 September 2021 onwards due to the legal judgment referred to in paragraph 4. Even where a council concedes an appeal or a SEND Tribunal upholds it, we cannot comment on the content of an EHC Plan, or the setting named.
9. Although the Council apologised to Mrs X for taking too long to complete the review of her child’s EHC Plan after the meeting that considered it, there was no delay in issuing the child’s final EHC Plan. The review was on 2 July 2021 and the Council had 14 weeks from the date when it decided to amend the EHC Plan to issue the final version. Assuming a decision to amend on the day of the review, that would have meant the Council could have taken until 8 October 2021 to issue the final Plan. It issued the Plan, giving Mrs X her right to appeal, more than a month before that deadline.
10. I have considered whether there might have been any failure to make alternative educational provision for the child before July 2021. I have done so because Mrs X stated that her child had not attended the school the Council named since December 2020. However, I note that the Council’s position in July 2021 was that the school was suitable and available to the child, which it later named in the EHC Plan. This means that the Council did not have a duty prior to July 2021 to make alternative educational provision. The Council’s later concession before the SEND Tribunal that another school was more suitable for the child does not retrospectively create such a duty before July 2021.

Back to top

Final decision

11. We will not investigate Mrs X’s complaint because matters from September 2021 are not separable from the use of the right of appeal to the SEND Tribunal. Investigation of matters before September 2021 is not warranted by the evidence of fault.

Back to top

Investigator's decision on behalf of the Ombudsman