Summary: We cannot investigate this complaint about the contents of a council officer’s report regarding Miss X’s son’s special educational needs and the support he needed at school. This is because the injustice she claims stems from the support provided by the school and the law does not allow us to investigate such matters.

The complaint

1. Miss X complains a council officer created an inaccurate report regarding her son’s abilities and special educational needs (SEN). She is concerned his school did not provide the proper support before the Council issued an Education, Health and Care (EHC) Plan as a result of statements made in the report.

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The Ombudsman’s role and powers

2. 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:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), section 34(B))

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
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 Miss X and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. A child or young person has SEN if they have a learning difficulty or disability which calls for special educational provision to be made for them. Most children have these needs met within local early years, mainstream school or college settings, sometimes with the support of outside . Support at this level is called SEN support. The Ombudsman does not have jurisdiction to look at complaints about ‘SEN support’ within settings.
10. Children with more complex needs might need an EHC Plan.
11. I appreciate Miss X’s concern is about the contents of the officer’s report but we cannot investigate this issue because the injustice she claims relates to the support and special educational needs provision provided by her son’s school prior to the issue of his EHC Plan. As such it falls outside our jurisdiction to investigate as set out at Paragraph 4.
12. However, even if we could investigate it is unlikely we could achieve any worthwhile outcome for Miss X. This is because the report reflected the council officer’s observations at the time, based on what they saw, and the Council has agreed to keep Miss X’s comments on file as an addendum to the report. Her disagreement with the officer’s observations is therefore noted and forms part of the official record.
13. The Council has now issued Miss X’s son an EHC Plan and if Miss X disagrees with the contents of the Plan and the provision set out in it, it would be reasonable for her to appeal to the Tribunal.

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Final decision

14. We cannot investigate this complaint because the injustice Miss X claims stems from the adequacy of the special educational needs support put in place by her child’s school.

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Investigator's decision on behalf of the Ombudsman