Summary: We cannot investigate Mrs X complaint about the contents of an Education Health and Care Plan. This is because she has used her right of appeal to the SEND Tribunal.

The complaint

1. Mrs X complains about the Council’s decision to name a particular school in her child’s Education Health and Care (EHC) Plan. Mrs X also complains about how the school responded to the Council’s consultation, how the Council dealt with her complaint and her subject access requests and its decision to place restrictions on Mrs X’s contact.

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 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
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

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

3. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons.

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

4. 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)

5. The First-tier Tribunal (Special Educational Needs and Disability – SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
6. We cannot investigate most complaints about what happens in schools.

(Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)

Back to top

How I considered this complaint

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

Back to top

My assessment

9. The Council carried out an EHC needs assessment for Mrs X’s child and issued a final EHC Plan. Mrs X complained to the Council about the school named in the EHC Plan and the decision-making process that led to that decision. She has requested the Council change the allocated case officer, has made subject access requests of the Council and complained about the actions of the school named in the EHC Plan.
10. The Council responded to Mrs X’s complaint. It has subsequently placed restrictions on her contact under it’s Unacceptable Actions by Customer Policy and has refused to escalate Mrs X’s complaint further.
11. I cannot investigate Mrs X’s complaint about the school named in the EHC Plan or the decision-making process that led to the school being named. Mrs X has appealed this decision to the SEND Tribunal which places it outside of our jurisdiction. We have no power to investigate the actions of the school in how it responded to the Council’s consultations.
12. Mrs X wants the caseworker allocated to her child’s case to be removed. This is not an outcome we can achieve. It is for the Council and not the Ombudsman to decide how staff should be allocated.
13. I will not investigate Mrs X’s complaint about how the Council dealt with her subject access requests. The Information Commissioner’s Office (ICO) is better placed to deal with this matter.
14. The Council sent Mrs X a warning before implementing restrictions on her contact. It then wrote to Mrs X informing her of the restrictions, explaining its reasons and provided evidence in support of its decision. It also advised Mrs X when the restrictions will be reviewed. I will not investigate this element of Mrs X’s complaint. The Council’s actions are in line with its policy and there is therefore insufficient evidence of fault.
15. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

Back to top

Final decision

16. We cannot investigate Mrs X’s complaint because she has used her right of appeal to the SEND Tribunal.

Back to top

Investigator's decision on behalf of the Ombudsman