Summary: We will not investigate this complaint that the Council has failed to act to ensure that the complainant’s daughter’s special educational needs are met. There is insufficient evidence of fault on the Council’s part to warrant investigation, and it would be reasonable for the complainant to use her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) about the content of her daughter’s Education Health and Care plan.

The complaint

1. The complainant, Mrs X, complains that the Council has failed to act to ensure that her daughters special educational needs are met.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
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 Tribunal in this decision statement.

Back to top

How I considered this complaint

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

Back to top

My assessment

7. Mrs X’s daughter has special educational needs. Mrs X complains that her daughter’s school has failed to ensure the delivery of the provision set out in her Education Health and Care (EHC) plan, and failed to support her request for a new placement. The correspondence Mrs X has provided shows that she has complained to the Council. The Council upheld her complaint in part but she says the issue of her daughter’s provision has not been properly addressed.
8. In response to the complaint, the Council says it met with the school to discuss the matter and has ascertained that the provision set out in Section F of the EHC plan is available to Mrs X’s daughter. It also confirms that the EHC plan has been reviewed and that no amendments are proposed.
9. The Ombudsman will not investigate Mrs X’s complaint. The actions the Council took in response to her complaint about the delivery of her daughter’s provision were reasonable in the circumstances. That being the case, it is not for the Ombudsman to intervene to substitute an alternative view, and we will not do so.
10. We can express no view on whether the school Mrs X’s daughter attends is appropriate for her, or whether a different placement should be provided. If Mrs X believes the provision or educational placement set out in the EHC plan do not meet her daughter’s needs, her recourse is to appeal to the Tribunal against the decision not to amend the EHC plan. Where appeal rights exist, the Ombudsman normally expects them to be used. It would be reasonable for Mrs X to use her appeal rights, and we will not investigate her complaint.

Back to top

Final decision

11. We will not investigate Mrs X’s complaint because there is insufficient evidence of fault on the Council’s part, and it would be reasonable for her to use her right to appeal to the Tribunal.

Back to top

Investigator's decision on behalf of the Ombudsman