Summary: We will not investigate this complaint about the suitability of a school for Miss X’s child. This matter is not separable from matters in respect of which she had a right of appeal to the Special Educational Needs and Disability Tribunal. The earlier part of the period covered by the complaint is also late, and there would be no good reason to exercise discretion to consider that period even if there had been no right of appeal it would have been reasonable to use. Investigating how the Council handled a complaint or communicated about a matter we are not investigating would not lead to any worthwhile outcome.

The complaint

1. Miss X complained the Council arranged a school placement for her child that did not meet the child’s special educational needs (SEN) for two years. She wanted to know why the school changed its mind about being able to meet her child’s needs. She also said the Council’s communications were poor.

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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 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

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

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My assessment

7. Miss X’s complaint concerns the correct school for her child not being chosen by the Council. She has also included in the correspondence with the Council that she sent in a letter in which the Council refers to conceding an appeal. Although it is not specifically stated in her complaint, those two points suggest strongly her child has as Education Health and Care (EHC) Plan, or at the least, that she was seeking one during the period of the complaint.
8. That is significant because, where a person wants a Council to name a specific school, or where they want a different school named, the route in case of disagreement is via an appeal to the SEND Tribunal.
9. Miss X’s main complaint is that the Council named a school that was not suitable for her child and that, after two years the school changed its mind about being able to meet her child’s needs. This matter is one where Miss X had a right of appeal to the SEND Tribunal it would have been reasonable to use. We cannot act as a substitute for that.
10. I note that Miss X first complained to the Council in the autumn of 2021. Therefore, the earlier part of her complaint, at least that before October 2020, would be late and without good reason to exercise discretion even if it were not caught by the jurisdictional exclusion explained in the previous paragraph.
11. Finally, while the Council’s complaint handling may have taken six months and lacked clarity after the first stage, there would be no worthwhile outcome from investigating it alone where the substantive matters are not being investigated. The same holds true of communications by the Council concerning the naming of a school.

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Final decision

12. We will not investigate Miss X’s complaint because:

• The issue of what school the Council named is not separable from a matter where she had a right of appeal to the SEND Tribunal it would have reasonable to use:
• Matters before October 2020 are late and there would be no good reason to exercise discretion to investigate them now even if the preceding point did not apply; and
• There would be no worthwhile outcome in investigating issues of complaint handling or communication where the substantive matters are not within our jurisdiction.

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Investigator's decision on behalf of the Ombudsman