Summary: We cannot investigate part of Mr X’s complaint about the Council’s decision to maintain his child’s Education, Health and Care Plan or the information it relied on when making that decision because he appealed to a tribunal, and the law says we cannot investigate. We will not investigate his complaints about the Council’s failure to provide a copy of a professional’s report or its complaints handling because the tests in our Assessment Code are not met.

The complaint

1. Mr X complained the Council failed to:
1. consider updated Speech and Language Therapy (SaLT) information as part of his child, Y’s, Education, Health and Care (EHC) annual review;
2. provide a copy of the final SaLT report to him; and
3. respond to all elements of his complaints.
2. Mr X said the matter caused him frustration and distress.

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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. 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)
6. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
7. 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)
8. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection or data processing. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

9. I considered information provided by the complainant and the Council.
10. I considered the Ombudsman’s Assessment Code.

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My assessment

EHC annual review

11. Mr X complained the Council failed to consider new information relating to Y’s SaLT as part of an EHC annual review. Mr X disagreed with the Council’s decision to “maintain” Y’s EHC Plan and appealed the decision to the Tribunal. Mr X believes additional information provided as part of the review process demonstrates Y’s EHC Plan should be changed.
12. We cannot investigate this complaint. The consequence of Mr X’s complaint is that the EHC Plan is flawed. Because Mr X appealed to the SEND Tribunal, the law says we cannot now investigate the process by which the Council made the decision.

SaLT report

13. Mr X complained the Council failed to provide him with a copy of a SaLT report it relied on when making the decision to maintain Y’s EHC Plan. Mr X said this meant he was unable to scrutinise the decision-making process.
14. We will not investigate this complaint. If Mr X has not received the report, it is reasonable for him to request the information from the Council. If the Council fails to provide the information, Mr X can take the matter to the Information Commissioner’s Office (ICO). The ICO is better suited than the Ombudsman to consider complaints of this type and so we will not investigate this complaint.

Complaint handling

15. Mr X complained the Council failed to address each of his complaints as part of its complaints handling. Mr X’s complaints broadly fall under matters that are out of our jurisdiction because of the Tribunal appeal or relate to the SaLT report, which we are not investigating for the reasons explained above.
16. 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. Consequently, we will not investigate this matter.

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Final decision

17. We cannot investigate part of Mr X’s complaint because he appealed to a tribunal, and the law says we cannot investigate. We will not investigate the remainder because the tests in our Assessment Code are not met.

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Investigator's decision on behalf of the Ombudsman