Summary: We will not investigate Miss X’s complaint about the handling of her son’s education. Miss X had the right to appeal to the First-Tier Tribunal (Special Educational Needs and Disability). Miss X has used that right which places most of the complaint outside our jurisdiction. There are some issues we could investigate, but it is unlikely we could add anything to the Council’s response. Also, the injustice from matters which are in our jurisdiction is not significant enough to warrant an investigation.

The complaint

1. The complainant, Miss X, complained about her child’s Education, Health and Care Plan (EHC Plan). Miss X is unhappy with the school named and the process followed to reach this decision. Miss X says because the Council named an inappropriate school it left her child without an education. Miss X says communication from the Council has been poor and there were delays in the latest annual review.

Back to top

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. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has 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. 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:

• 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
• there is no worthwhile outcome achievable by our investigation.

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

Back to top

How I considered this complaint

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

Back to top

My assessment

8. We will not start an investigation into Miss X’s complaint. It is not for us to take a view on whether the content of the EHC Plan was appropriate. This matter carries a right of appeal to the SEND Tribunal. This is the proper route by which to challenge the school named in an EHC Plan. Miss X has used this right.
9. Where appeal rights have been used, the matter is outside our jurisdiction from the point at which the appeal rights were available. As well as the school named in the EHC Plan, we cannot consider how the Council decided the content of the plan. This is because the decision-making is too closely linked to the matter appealed. Miss X says her child is out of school because the Council named an inappropriate school. The Council disagrees. Again, this issue is too closely linked to the matter appealed. We have no jurisdiction to consider this part of Miss X’s complaint. We cannot consider the Council’s conduct during the appeals process.
10. The Council has responded to Miss X’s complaints, and these included her concerns about poor communication. It is unlikely we could add anything worthwhile to the Council’s response. There was delay in completing the latest annual review. However, the EHC Plan was only issued a month late. That does not represent a personal injustice significant enough to warrant us investigating.

Back to top

Final decision

11. We will not investigate Miss X’s complaint because most of it is outside our jurisdiction. For the remaining issues it is unlikely we could add anything to the Council’s response, or the injustice is not significant enough to warrant an investigation.

Back to top

Investigator's decision on behalf of the Ombudsman