This fact sheet is aimed mainly at parents who are concerned that their child may have special educational needs that are not being met and may be considering making a complaint to the Ombudsman.
What is the Ombudsman's role in complaints about special educational needs?
The Ombudsman can investigate a complaint that a council has failed to deal properly with a child’s special educational needs (SEN). This includes delay in assessing a child and issuing an Education Health and Care Plan (EHCP) and failing to implement a statement/EHCP or carry out an annual review.
The Ombudsman is concerned with process, not with the merits of council decisions taken properly. Also, the law generally prevents us from investigating complaints for which a remedy is available through an appeal to a statutory tribunal. This means that the Ombudsman cannot investigate a complaint when the issues it raises can be dealt with through an appeal to the First Tier Tribunal (Special Educational Needs and Disability) (SEND). So, for example, we cannot question a council’s decision not to assess a child as this can be appealed.
If you have appealed to SEND, it is unlikely we will be able to investigate any aspect of a complaint, such as interim provision, while the appeal is being heard. However, this will depend on the specific circumstances of each case.
From September 2014 the SEN regulations changed and SEN provision is covered by the Special Educational Needs and Disability Regulations 2014 and the Special Educational Needs and Disability 0-25 Code of Practice 2014. There were formal transitional arrangements for councils to move from the old system to the new until 2018. The Ombudsman can look at council actions under those arrangements.
Under the new Regulations there are new rules for personal budgets, greater involvement of children and particularly young people over the age of 16 in decisions about their provision and the ‘Local Offer’ councils must set out for the SEN provision in their area. The Ombudsman can look at all of these elements.
Can the Ombudsman look at the way the school has dealt with my child's special educational needs?
Yes, if your child has a statement of SEN/EHCP and you complain that the council is failing to arrange and maintain the specified provision. The Ombudsman can look at the school’s role in this.
No, if your complaint is about anything else.
When can the Ombudsman become involved?
Most special educational needs are dealt with by the child’s school without any council involvement. If you have concerns or a complaint about your child’s progress, and he or she is getting either no or only limited extra help at school, and the council is not involved in any way, you should raise the matter with the head teacher or SEN co-ordinator (SENCO). The Ombudsman cannot normally deal with your complaint at this stage because only the school is involved.
If you or the school believe that your child is failing to make sufficient progress with the level of support that the school can provide, you can ask the council to carry out a statutory assessment of your child’s SEN. This is the point at which the council’s involvement starts and the Ombudsman may be able to help.
How do I complain?
You should normally complain to the council first. Councils often have more than one stage in their complaints procedure and you will usually have to complete all stages before we will look at your complaint.
Then, if you are unhappy with the final outcome, or the council is taking too long to look into the matter - we think 12 weeks is reasonable - you can complain to us.
You should normally make your complaint to us within 12 months of realising that the authority has done something wrong.
What happens if the Ombudsman finds the council was at fault?
If the Ombudsman finds that your child’s special educational needs have not been dealt with properly we will consider the effect on you and your child and we may suggest a remedy ranging from an apology through to compensation. Ideally, we would want the authority to take action to address any loss of provision such as providing extra help to your child, and we would always want any continuing failings put right as quickly as possible.
Examples of some complaints we have considered
Other sources of information
For further information about the First Tier Tribunal (Special Educational Needs and Disability) (SEND) see their website: www.justice.gov.uk/tribunals/send
For more general help and advice contact the ACE Education Advice at: www.ace-ed.org.uk
Our fact sheets give some general information about the most common type of complaints we receive but they cannot cover every situation. If you are not sure whether we can look into your complaint, please contact us.