Summary: We have upheld Miss X’s complaint because the Council did not give clear reasons for its refusal to consider matters while a Tribunal was ongoing. The Council has agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused to Miss X.

The complaint

1. Miss X complains the Council wrongly refused to address her complaint due to an ongoing Tribunal appeal, even though her complaints are about separable matters.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. I considered information provided by Miss X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Miss X complained to the Council about its conduct during a SEND Tribunal appeal and its failure to meet her child’s Education Health and Care Plan (“EHC Plan”) provision while the appeal was ongoing.
9. The Council refused to investigate Miss X’s complaint on the grounds it cannot investigate any matter which was part of, connected to, or could have been part of the appeal. And because concerns about conduct during the Tribunal process are more appropriately raised to the Tribunal judge.
10. If we were to investigate it is likely we would find fault causing Miss X injustice because the Council did not provide clear reasons to explain how each part of the complaint was too closely connected to the Tribunal appeal for it to consider now. This has caused Miss X distress and a missed opportunity to remedy her complaint sooner. In particular I note the Council’s duty to meet SEN provision as set out in the existing EHC Plan remains, pending any Tribunal outcome.
11. We therefore asked the Council to carry out the following actions within one month of a final decision:
• Write to Miss X to give reasons to explain how each and any part of her complaint is too closely linked to the Tribunal appeal for the Council to consider now and confirm it will consider any remaining matters through its complaints process.
• Issue a stage 1 complaint response on any remaining matters and say how Miss X can escalate if she remains unhappy.

Agreed action

12. To its credit the Council agreed to resolve the complaint early by completing the actions at paragraph 11.

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Final decision

13. We have upheld this complaint because the Council has agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused to Miss X.

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Investigator's decision on behalf of the Ombudsman