Special educational needs

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 appropriately address 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 an EHCP or carry out an annual review.

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 for an EHCP 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 Special Educational Needs and Disability Regulations 2014 and the Special Educational Needs and Disability 0-25 Code of Practice 2014 came into force. 

These introduced new rules for personal budgets, and a requirement for greater involvement of children and young people over the age of 16 in decision making about their provision. They also included the ‘Local Offer’ which requires councils to provide advice and information about the SEN provision in their area. The Ombudsman can look at complaints about all of these elements.

The Ombudsman cannot criticise a decision made by a council if it has followed the right processes in coming to that decision.

Can the Ombudsman look at the way the school has dealt with my child's special educational needs?

Yes, in some cases. If your child has an EHCP, the council has to work with the school to ensure your child gets the provision set out the plan. The Ombudsman can look at the school’s role in delivering the provision and how the council ensured the school provided the support as set out in the EHCP. If you complain the council is failing to arrange and maintain the specified provision, we can look at this, but can only make findings about the council, not the school. If we find fault causing injustice, we can make recommendations for what the council needs to do.

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 support at school, you should raise the matter with the headteacher or school SEN co-ordinator (SENCO). The Ombudsman cannot normally deal with your complaint at this stage because only the school is involved. This is because the Ombudsman can only look at the council’s actions and not those of your child’s school.

If you or the school believe that your child is failing to make sufficient progress with the level of support 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 council has done something wrong.

For more information on how to complain, visit our contact page or complete an online complaint form.

What happens if the Ombudsman finds the council was at fault?

If the Ombudsman finds fault in how the council has addressed your child’s special educational needs we will consider the effect on you and your child. We may suggest a remedy ranging from an apology through to a financial remedy. . Where possible, we recommend action to put the person back in the position they would have been, had the fault not happened. Ideally, we would want the council to take action to address any loss of provision such as providing extra help for your child, and we would always want any continuing failings put right as quickly as possible.

Examples of some complaints we have considered

Miss X complained about delay by the council in issuing an Education, Health and Care Plan for her child, Y. We found the council was at fault. There was delay in issuing the final plan and because of this, Y missed out on education. The council agreed to make a payment to Y to recognise the impact of the delay and the lost education.
Mrs X complained the council failed to ensure her son received the support set out in his Education, Health and Care Plan and a full-time education. In this case, the Ombudsman did not find the council at fault. We found the council had acted appropriately by working closely with the school to try and increase Y’s school attendance to ensure he received the support and education. The Ombudsman did not criticise the council in these circumstances.

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 IPSEA at: www,ipsea.org.uk or CONTACT at www.contact.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.

We provide a free, independent and impartial service. We consider complaints about the administrative actions of councils and some other authorities. We cannot question what a council has done simply because someone does not agree with it. If we find something has gone wrong, such as poor service, service failure, delay or bad advice and that a person has suffered as a result we aim to get it put right by recommending a suitable remedy.

November 2019