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.
A national pilot scheme, in place until August 2021, currently allows appeals to SEND about the health and social care aspects of an EHCP, alongside the educational provision.
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.
We can investigate complaints that a council has failed to implement a Tribunal recommendation related to educational provision in an EHCP, or where a recommendation has been agreed, a failure to deliver the provision. Until August 2021, the national pilot scheme also allows us to look at complaints about failure to implement recommendations related to social care provision in an EHCP. We can investigate complaints about councils taking longer than 5 weeks to reach a decision about whether to agree to implement a Tribunal recommendation.
We can look at how the Council has dealt with a request for a personal budget or involved children and young people over 16 in decision making.
We can investigate complaints about the Local Offer. The Local Offer requires councils to provide advice and information about SEN provision in their area.
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 unless your child is being assessed for or has an EHCP. 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.
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
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
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.