Summary: We will not investigate Mrs X’s complaint because she has appealed to the Special Educational Needs and Disability Tribunal. And the Information Commissioner’s Office is better placed to consider her data complaint.

The complaint

1. Mrs X complained the Council did not follow Educational Health Care Plan (EHC Plan) procedures for a change of school request.
2. Mrs X says a school (Z) named is not providing the needs as set out in her son, B’s, EHCP.
3. Mrs X says the Council have not processed Subject Access Requests, preventing Mrs X from preparing for mediation.
4. Mrs X says B is starting at school Z in September 2024 on a reduced timetable due to lack of funding and support.

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The Ombudsman’s role and powers

5. 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)
6. 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.
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 there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
8. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6

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How I considered this complaint

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

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My assessment

11. The Council completed an EHC Plan review for B in June 2024. It named a mainstream primary school (Z) in an amended EHC Plan. Mrs X has appealed the EHC Plan to the SEND Tribunal. Because of this appeal we cannot investigate the assessment process or the EHC Plan content.
12. For issues about Subject Access Requests (SAR), it would be reasonable to expect Mrs X to use the Council’s Data Processing Agreement (DPA). And thereafter the Information Commissioners’ Office (ICO).
13. The ICO is the UK’s independent authority set up to uphold information rights. It promotes openness by public bodies and protects the privacy of individuals. It deals with complaints about public authorities’ failures to comply with data protection legislation including SARs.
14. There is no charge for making a complaint to the ICO, and its complaints procedure is relatively easy to use. Where someone has a complaint about data protection, the Ombudsman usually expects them to bring the matter to the attention of the ICO. This is because the ICO is in a better position than the Ombudsman to consider such complaints. I consider that to be the case here.
15. B only started at school Z in September 2024. It would be reasonable to expect Mrs X to complain to the Council about any failings since then. We could not investigate any provision failures which are integral to the SEND Tribunal appeal dispute.

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Final decision

16. We will not investigate Mrs X’s complaint because she has appealed to the SEND Tribunal. It is reasonable for Mrs X to submit a further complaint to the Council if she wants to challenge the delivery of her son’s EHC Plan at the named school from September 2024. And the ICO is better placed to consider her SAR dispute.

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Investigator's decision on behalf of the Ombudsman