Summary: We will not investigate this complaint that the Council failed to act on the complainant’s request for a special school placement. This is because the complainant may use her right to appeal to a tribunal and it would be reasonable for her to do so.

The complaint

1. The complainant, who I will refer to as Miss X, complains that the Council was at fault in failing to act on her request for a special school placement for her son.

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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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (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.

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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 son has special educational needs and an Education Health and Care Plan (EHCP). She complains that the Council was at fault in failing to seek an appropriate special school placement in time for it to be named in the final EHCP. Rather, it finalised the EHCP before taking the case to a panel for consideration, then named an unsuitable setting.
8. Miss X contends that, without the fault on the Council’s part, her son may have obtained a place at the placement of her choice, and that she has instead been compelled to use her right to appeal to the SEND Tribunal. The Council accepts that it delayed processing Miss X’s request for the placement of her choice but does not accept that this disadvantaged her son.
9. The Ombudsman will not investigate Miss X’s complaint. The key outcome of the fault Miss X identifies is that the provision of her choice was not named on her son’s EHCP. We can take no view on the suitability or otherwise of the named provision. This is a matter about which Miss X has the right to appeal to the SEND Tribunal. Where appeal rights exist, the Ombudsman expects them to be used, and Miss X has indicated her intention to do so.
10. The law provides that, where appeal rights are used, the Ombudsman has no jurisdiction. The Courts have held that this restriction applies where the subject of the complaint is inextricably linked with the matter subject to appeal. The fault Miss X identifies is not separable from the issue of the named provision. This is an appealable matter and we will not therefore investigate the complaint.

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Final decision

11. We will not investigate Miss X’s complaint because it would be reasonable for her to use her right to appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman