The Ombudsman's final decision
Summary: We cannot investigate this complaint about the Council’s assessment of the complainants son’s needs. This is because he has used his right to appeal to a tribunal and the matters raised by the complainant are not separable from this appeal.
The complaint
The complainant, who I will call Dr X, complains about how the Council assessed his son’s Special Educational Needs (SEN). Dr X says the Council did not properly consulte with schools, meaning an unsuitable school has been named in his son’s Education Health and Care (EHC) plan.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
The courts have said we can decide not to investigate a complaint about any action by a council concerning a matter which is outside our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council carried out an assessment of Dr X’s son’s Special Educational Needs (SEN). Dr X says the Council failed to include the parents in the consultation process, failed to provide all relevant information to schools it consulted and failed to give the schools adequate time to respond. Dr X says this has resulted in a school being named in his son’s Education Health and Care (EHC) plan which cannot meet his needs, resulting in him having appeal the placement at the SEND Tribunal.
I cannot investigate Dr X’s complaint about fault in the consultation process for the school named on his son’s EHC plan. This is because the matter has been appealed to the SEND Tribunal. How the Council carried out its assessment, including the consultation process, is not separable from the matter subject to tribunal proceedings.
Final decision
We will not investigate Dr X’s complaint because the matter concerns something that has been appealed at tribunal.
Investigator's decision on behalf of the Ombudsman