Summary: We will not investigate Mrs X’s complaint about the Council’s handling of her child’s special educational needs. She says the Council failed to support her child, missed legal deadlines, and completed a poor reassessment. This is because it is out of the Ombudsman’s jurisdiction as she has used her right of appeal. Even if we had jurisdiction to investigate, we would not investigate as it would not lead to any further outcomes.

The complaint

1. Mrs X complains about the Council’s handling of her child’s special educational needs. She complains the Council failed to support her child, missed legal deadlines, and completed a poor reassessment. She says this caused delays with her child’s education and caused stress, anxiety, and frustration.

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The Ombudsman’s role and powers

2. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
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. 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:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

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

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How I considered this complaint

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

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My assessment

7. Mrs X’s child has special educational needs and an education, health, and care plan. In January 2022, Mrs X requested the Council complete a reassessment of her child’s needs. The Council refused. Mrs X appealed to the Tribunal in September 2022. In March 2023, the Council said it was instructed by the Tribunal to complete a full reassessment. In November 2023, the appeal process concluded.
8. We cannot investigate Mrs X’s complaints about the Council missing deadlines and completing a poor reassessment. This is because the matter is outside the Ombudsman’s jurisdiction as these actions fell during the period the appeal was ongoing. Further, these were matters for the Tribunal to consider and resolve.
9. During the period of appeal, September 2022 to November 2023, some alternative provision was provided to Mrs X’s child. It is noted Mrs X did not consider the provisions to be suitable and so arranged for further provision. Again, this matter is out of the Ombudsman’s jurisdiction because the matters fell within the period where the appeal was ongoing.
10. It is worth nothing that even if the Ombudsman had jurisdiction to consider the complaint, we would not investigate as it would not lead to any further outcomes. This is because the Council has appropriately remedied the injustice caused.
11. The Council confirmed the Tribunal had directed it to provide the provisions that Mrs X had arranged during the appeals process. Therefore, the Council reimbursed Mrs X for the costs she incurred in arranging the additional provisions. I note the Council has not yet reimbursed Mrs X for the costs incurred in arranging an occupational therapy assessment. However, the Council confirmed this was an oversight and would arrange for this to be completed.
12. Further, the Council offered a symbolic financial payment of £1500 to recognise the anxiety and distress caused to the child, and £500 to recognise the time and trouble taken by Mrs X to pursue the complaint. These remedies are in line with the Ombudsman’s guidance on remedies.

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Final decision

13. We will not investigate Mrs X’s complaint because it is out of the Ombudsman’s jurisdiction as she has used her right of appeal. Even if we had jurisdiction to investigate, we would not investigate as it would not lead to any further outcomes.

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Investigator's decision on behalf of the Ombudsman