Summary: We will not investigate this complaint about Mrs X’s son’s Education, Health and Care plan because she has appealed to a Tribunal. We will not investigate the remaining matters regarding delay and failure to provide section 19 provision because we cannot achieve the outcome Mrs X is seeking.

The complaint

1. Mrs X complains the Council named a school which did not meet her son, C’s, care needs. That it delayed naming a school and failed to provide suitable full-time education for C while the Council was assessing his needs.
2. She says this cost her financially as she felt she had to instruct solicitors to resolve the situation.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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.
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. 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 cannot achieve the outcome someone wants. (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. Mrs X sought to enrol C outside the normal admissions round. After C started school, the Council carried out an Education, Health and Care Needs assessment to decide a suitable school for his needs. The Council named a setting at first and then later named a school. Mrs X did not agree the school was suitable as she felt it did not meet C’s health and care needs. Mrs X put in an appeal to the tribunal but reached a resolution on an alternative school before any hearing.
10. Mrs X says the delay in naming the school in C’s Education, Health and Care (EHC) plan limited her chances to object. She says she was compelled to pursue the matter by engaging legal representation to seek a Judicial Review and her appeal. Mrs X has asked the Council to pay her legal costs to remedy her complaint.
11. We cannot investigate Mrs X’s complaint about the school the Council named not being suitable. She had, and has used, her right of appeal to the Tribunal about the content of the EHC plan.
12. The Ombudsman will not investigate Mrs X’s remaining complaints as we are unlikely to be able to achieve the outcome she is looking for. It was her choice to incur the costs.

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Final decision

13. We will not investigate Mrs X’s complaint because she has appealed to a tribunal which places matters outside our jurisdiction, and we cannot achieve the outcome Mrs X wants for the remaining complaints.

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Investigator's decision on behalf of the Ombudsman