Summary: We will not investigate this complaint linked to the Education Health and Care Plans of the complainant’s children. This is because the complainant has appealed to a tribunal, which places much of the complaint outside our jurisdiction. We have no powers to consider the Council’s conduct during the appeal. There is not enough evidence of fault by the Council after the appeal to warrant our involvement. Mrs X’s concerns about the Council ignoring safeguarding concerns are either late or there is not enough evidence they caused significant personal injustice.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained about the school named in her children’s Education Health and Care Plans (EHC Plan). Mrs X felt her children were not safe if they remained at their school. Mrs X says the Council failed to act on safeguarding concerns raised by the school, and then by an Educational Psychologist she commissioned. Mrs X then appealed to the SEND Tribunal. Mrs X is unhappy with the Council’s conduct during her appeal to the SEND Tribunal. Mrs X also says the Council was slow to comply with the Tribunal’s decision. A solicitor supported Mrs X during the appeals process and in making her complaint to the Ombudsman. Mrs X wants her legal costs reimbursing.

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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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. Nor can we investigate a complaint if in doing so we would trespass on the role of a tribunal to determine matters which have been or could have been referred to it to resolve using its own powers. (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 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, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

7. I considered information provided by the complainant and their representative.
8. I considered the Ombudsman’s Assessment Code.
9. I sent a draft decision and considered the comments received.

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What I found

Background

10. Mrs X’s two children, D and E, have EHC Plans. In July 2021 the school D and E attended wrote to the Council with concerns about the behaviour of one of the children. In May 2022, an Educational Psychologist (EP) commissioned by Mrs X, wrote to the Council with safeguarding concerns due to D and E’s current school. Mrs X wanted the children to transfer to an alternative school immediately. The Council said Mrs X’s preferred school was full but would look to move the children in September 2023.
11. Mrs X therefore appealed to the SEND Tribunal for both children. Her appeal included the school named in their EHC plans.
12. The SEND Tribunal issued its decision on 15 September 2022. It ruled in Mrs X’s favour and said the Council should name her preferred school in both EHC Plans.
13. Mrs X is unhappy the Council did not respond to the safeguarding concerns raised by D and E’s school and contained in the EP report she commissioned. Mrs X also says the Council’s conduct during the appeal to the SEND Tribunal was unreasonable and interfered with her ability to take part in the proceedings. Mrs X also says the Council was slow to act after the Tribunal issued its decision.

Assessment

14. We will not investigate Mrs X’s complaint for the reasons set out below.
15. Mrs X appealed to the SEND Tribunal. When an appeal has been made, the Ombudsman has no jurisdiction to consider related matters from the point at which the appeal rights were engaged, to the point at which the SEND Tribunal issues its decision. The courts have held we cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This includes the school D and E attended during the appeals process - which was the subject of the appeal.
16. The conduct of the Council during the appeal is also outside our jurisdiction.
17. The SEND Tribunal can make case management directions, has powers to deal with non-compliance, and in certain situations, can make cost orders. If Mrs X or her representative believed the Council’s conduct was unreasonable, they could have asked the SEND Tribunal to order the Council to pay their costs.
18. A council’s failure to comply with the SEND Tribunal’s decision is something we can look at. Once the SEND Tribunal issued its decision on 15 September, the Council had five weeks to issue a final EHC Plan naming Mrs X’s preferred school. It did this on 29 September and D and E started at Mrs X’s preferred school in October. There is not enough evidence of fault to warrant us investigating.
19. Mrs X says D and E’s school raised safeguarding concerns in July 2021, but the Council did not act. The Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem. We look at each complaint individually, and on its merits, considering the circumstances of each case. But we do not exercise discretion to accept a late complaint unless there are good reasons to do so. I do not consider that to be the case here. I see no reason why Mrs X could not have complained much earlier about the Council allegedly failing to act on the school’s concerns.
20. The EP report commissioned by Mrs X was sent to the Council in May 22. I will not consider this point to be late as Mrs X complained to the Ombudsman only just outside the 12-month timescale referred to above. Mrs X says the Council did not respond to the concerns raised in the EP report, despite saying it would.
21. If the Council did fail to respond to a safeguarding concern, then that would be fault. But in deciding whether to investigate we also need to consider the injustice caused by the alleged fault.
22. Based on the evidence available, we could not say that if the Council had responded to the EP report the outcome would have been different. We could not say the Council would have agreed to moving D and E to a different school earlier. On balance, this seems unlikely, as the Council clearly felt a later move was acceptable. We could not say that an appeal to the SEND Tribunal would not have been necessary (and I note Mrs X’s appeal was submitted before the EP sent their report to the Council). We could not therefore say the outcome would have been any different. These limitations also apply to what happened in July 2021 when D and E’s school raised a concern. Consideration of these points by the Ombudsman would not achieve anything more and so we will not investigate.

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Final decision

23. We will not investigate Mrs X’s complaint. This is because she has appealed to a tribunal which places much of the complaint outside our jurisdiction. There is not enough evidence of fault by the Council after the appeal to warrant an investigation. Mrs X’s concerns about the Council ignoring safeguarding concerns are either late, or there is not enough evidence they caused significant personal injustice. It is also unlikely investigation into this point would achieve anything more.

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Investigator's decision on behalf of the Ombudsman