Summary: We will not investigate this complaint about how the way the Council assessed Mrs X’s child’s special educational needs and issued an Education Health and Care Plan. The principal matters complained of are not separable from the content of the Plan. Mrs X has an alternative remedy available it would be reasonable to use concerning the Plan’s contents by way on appeal to the Special Educational Needs and Disability Tribunal. Investigation of the remaining matters is not warranted by the injustice solely caused by those matters.

The complaint

1. Mrs X said the Council failed to complete the necessary work in assessing her child’s special educational needs (SEN) before issuing an Education Health and Care (EHC) Plan that failed to identify meet her needs and specify the correct provision. She said the Council has failed to offer alternative educational provision even though her child is not able to attend the setting named.
2. Mrs X also said the Council took two and a half weeks too long to issue the EHC Plan, and that it dealt poorly with her complaint.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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.
6. 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
7. We investigate 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 continue an investigation if we decide any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
8. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

9. I considered information provided by the complainant and the Council.
10. I considered the Ombudsman’s Assessment Code.

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My assessment

11. The principal matters Mrs X complains of are not separable from the nature of the educational provision for her child. While we might in other circumstances find fault with a council’s actions, we cannot do so where they relate to decisions about the nature of a child’s SEN. This is a matter for the SEND Tribunal to decide and it would be reasonable to use the right of appeal available. Thus, we cannot take any view about the quality of the assessments the Council carried out, or what was excluded or incomplete. And we cannot say the Council should offer alternative educational provision, even where it is has not specified a school or other provision in Section I of the EHC Plan for the child to attend. This is because Mrs X has a right of appeal against the content of the EHC Plan it would be reasonable to use to seek the provision she believes best meets her child’s needs. Once she appeals, the legal judgement referenced above prevents us taking any view of what educational provision should be made.
12. The remaining parts of the complaint are not on their own sufficient to warrant investigation by us. The Council’s delay in issuing an EHC Plan Mrs X could appeal against is not long enough to have significantly delayed her right of appeal. And complaint-handling issues did not cause a significant delay to Mrs X approaching us, or delay any remedy we would have recommended.

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Final decision

13. We will not investigate Mrs X’s complaint because:

• The principal matters complained of are not separable from the nature of the SEN provision required for Mrs X’s child, where she has an alternative remedy available by way of an appeal to the SEND Tribunal it would be reasonable to use;
• Upon her use of that alternative remedy, we are prevented by a legal judgement from considering whether the Council should offer alternative educational provision; and
• The remaining matters do not involve sufficient separable injustice to warrant our involvement.

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Investigator's decision on behalf of the Ombudsman