Summary: We will not investigate this complaint that the Council has failed to make appropriate educational provision and support available for the complainant’s daughter. This is because the Ombudsman’s intervention would not achieve anything significant or lead to a different outcome, and is not therefore warranted.

The complaint

1. The complainant, Miss X, complains that the Council has failed to make appropriate educational provision and support available for her daughter.

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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. 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. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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 Tribunal in this decision statement.

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How I considered this complaint

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

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My assessment

9. Miss X’s daughter is the subject of an Education Health and Care Needs Assessment (EHCNA). Miss X complains that the Council has failed to properly support her daughter’s education, has failed to communicate with her and has failed to complete the EHCNA within the statutory deadline.
10. The complaint correspondence shows that, at the point at which the complaint was made, Miss X’s daughter was receiving education at a school with support provided by the Council’s Inclusion Service. In response to the complaint, the Council accepted that the EHCNA was subject to delay and, as a result, the EHC plan would be issued late. It has offered to make a symbolic payment in recognition of the impact of the delay on Miss X and her daughter.
11. It is not for the Ombudsman to consider whether the education a school provides to a child without an EHC plan is appropriate. This is a matter which falls outside our jurisdiction, and we cannot consider whether Miss X’s daughter is receiving appropriate education. Neither can we comment on what should be included in an EHC plan. If Miss X wishes to challenge the content of the EHC plan, it would be reasonable for her to use her right to appeal to the Tribunal.
12. We can consider complaints about EHCNA and EHC plan delay. The Council has upheld Miss X’s complaint and accepted that it has failed to issue her daughter’s EHC plan within the timescale set out in statutory guidance. Where a complaint has been upheld, the question for the Ombudsman is whether our involvement is likely to achieve anything significant.
13. In this case, the symbolic financial remedy the Council has offered is based on guidance published by the Ombudsman and is in line with what we would be likely to recommend in the circumstances of the case. Our intervention would not lead to a different outcome and is not therefore warranted.

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Final decision

14. We will not investigate Miss X’s complaint because our intervention would not achieve anything significant or lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman