Summary: We will not investigate Miss X’s complaint about the way the Council responded to her request for an assessment of her child’s special educational needs and the time it took to do so. There is no evidence of delay by the Council, and the remaining matters are related to the child’s SEN, in respect of which Miss X has had a right to appeal to the SEND Tribunal it would be reasonable to use.

The complaint

1. Miss X said there were various failings by the Council in considering her child’s special educational needs (SEN). Among other matters, she complained:

• the Council failed to respond to multiple requests for an EHC Plan;
• that the assessments carried out by the Council were inadequate; and
• that it failed to make reasonable adjustments she needed.

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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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
4. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
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. 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.

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

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How I considered this complaint

7. I considered information provided by the complainant.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. The complaint correspondence provided by Miss X indicates that the complaint is fundamentally concerned with the nature of her child’s SEN. That is matter for a SEND Tribunal and it would be or have been reasonable for Miss X to exercise her right of appeal. The adequacy or otherwise of reports and assessments from those parties consulted or omitted by the Council is not something we can treat as separable from the content of the resulting EHC Plan.
10. There is no evidence of delay by the Council. The time taken by the Council to issue an EHC Plan after a request on 31 October 2023 was within the statutory timescale. The Council’s final complaint response to Miss X stated it had invited her to provide evidence of the earlier requests for assessment she said she made, but that it had not received any from her. Without evidence of any earlier requests, we cannot say that is wrong.
11. The correspondence Miss X provided did not refer to any specific requested adjustment for her, only to her child’s needs. Similarly, Miss X’s request to us for adjustments did not mention anything specific concerning her to consider or provide any reason. It follows that investigation by us would be unlikely to find fault by the Council in failing to consider any request.

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Final decision

12. We will not investigate Miss X’s complaint because:

• The majority of the matters complained of are closely linked to the nature of her child’s needs, where she has or has had a right to appeal to the SEND Tribunal it would be reasonable to use; and
• There is no evidence of fault by the Council in responding in a timely way to a request to assess the child’s SEN.

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Investigator's decision on behalf of the Ombudsman