Summary: We cannot investigate this complaint about missed education and failure to secure special education provision specified in Y’s Education and Healthcare Plan. This is because Mr X has already taken the matter to judicial review on Y’s behalf and the law prevents us from investigating. Mr X has not suffered significant injustice in relation to the remaining issues complained about.

The complaint

1. Mr X complains on behalf of Y. He says Y was unable to attend school for over a year.
2. He complains that during this time the Council did not provide a suitable education for Y and did not secure the provision specified in their Education and Healthcare Plan (EHCP).
3. Mr X says the lack of educational provision caused a clear deterioration in Y’s mental health, increased their anxiety, and disrupted their development at a critical stage. He says the process has been time consuming, exhausting and stressful for him.
4. Mr X says the remedy offered by the Council does not adequately reflect the missed education and emotional and developmental harm caused.
5. He also wants a written apology for and explanation of the Council’s complaints handling, and assurances that training is put in place to ensure staff understand the Council’s legal duties.

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The Ombudsman’s role and powers

6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)

8. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)

9. 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:

• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome.

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

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How I considered this complaint

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

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My assessment

12. Mr X challenged the Council’s decisions regarding Y’s education and alternative provision by way of judicial review. I have carefully considered the grounds for judicial review and the timeframes when lack of educational provision occurred. The restriction in paragraph 9 prevents us investigating any aspect of the Council’s decisions regarding Y’s education and alternative provision as the issues raised have been subject to court proceeding.
13. Mr X also complained the Council refused to consider his complaint. 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. As the Council, acknowledged its error and later considered Mr X’s complaint, it is unlikely to have caused sufficient injustice to warrant our investigation.

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Final decision

14. We cannot investigate Mr X’s complaint because the issues raised have been subject to court proceedings and the law prevents us from investigating. Mr X has not suffered significant injustice in relation to the remaining issues complained about.

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Investigator's decision on behalf of the Ombudsman