Summary: We will not investigate this complaint the Council has been at fault in addressing the complainant’s son’s special education needs. This is because it was reasonable for Mr X to use his right of appeal to the First-tier Tribunal (Special Educational Needs and Disability). An appeal remains the best option for Mr X to achieve his desired outcome. An investigation by the Ombudsman could not give Mr X what he wants.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained the Council named an unsuitable school in his son’s Education, Health and Care Plan (EHC Plan). Mr X says the Council ignored his requests that it find his son a special school place.

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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. 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:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• it would be reasonable for the person to ask for a council review or appeal; or
• there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

8. Mr X’s son (Y) has special educational needs and an EHC Plan. The Council first issued Y with an EHC Plan in July 2023. Mr X says he asked the Council in November 2023 to find his son a special school place. The Council issued a revised EHC Plan in December 2023. Mr X says the Council failed to act on his request for a special school place until July 2024.
9. We will not start an investigation into Mr X’s complaint.
10. The issue at the heart of this complaint is the school named in Y’s EHC Plan. Parents who want to challenge such decisions have a right of appeal the SEND Tribunal. The Tribunal can decide if an EHC Plan should be amended, and a different school named. We cannot. An appeal to the SEND Tribunal could therefore have given Mr X the outcome he wants. It was therefore reasonable for him to appeal and so we will not investigate.
11. The Council says it has been unable to secure a special school place because of a lack of places in its area. So, even if the Council had started looking for a place earlier, we could not say the outcome would have been different. If there was any delay by the Council, it did not frustrate Mr X’s appeal rights, as they were available from December 2023.
12. Following Y’s next annual review there will be a fresh right of appeal. For the reasons set out above it is reasonable for Mr X to exercise this right. It can give him the outcome he wants.

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Final decision

13. We will not investigate Mr X’s complaint because it was reasonable for him to appeal. It remains the correct mechanism for Mr X to challenge the content of his son’s EHC Plan. An investigation by the Ombudsman could not give Mr X the outcome he wants.

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Investigator's decision on behalf of the Ombudsman