The Ombudsman's final decision
Summary: We will not investigate this complaint about the quality of reports produced by the Council in assessing Mrs X’s child’s special educational needs. The matters complained of are not separable from the content of an eventual Educational Health and Care Plan decided upon by the Council, where there is a right to appeal to the Special Educational Needs and Disability Tribunal Mrs X has used.
The complaint
Mrs X said the Council has slandered her and breached GDPR. She said it attempted to influence professionals involved in assessing her child’s special educational needs (SEN) by painting her in a negative light. She said the Council did not assess properly, and the reports it used were unspecific and of poor quality. She said she had had to spend more than £9,000 on reports and advocacy to ensure her child’s Education Health and Care Plan was fit for purpose.
The Ombudsman’s role and powers
The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (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 law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Slander is a civil legal matter where there is a right to go to court it would be reasonable to use.
The Information Commissioner’s Office (ICO) is better placed than us to deal with data breaches as it can decide if there has been a data breach and impose penalties.
The Council’s actions and the reports it used to arrive at its view of Mrs X’s child’s SEN are not separable from the content of the resulting EHC Plan. Nor are the costs incurred by a parent in preparing for and contesting a SEND Tribunal hearing. Mrs X used her right of appeal to the SEND Tribunal against the provision identified by the Council.
Final decision
We will not investigate Mrs X’s complaint because: There is a right to go to court regarding slander it would be reasonable to use; The ICO is better placed than us to consider a complaint about a data breach; and The remaining matters complained of are not separable from matters in respect of which Mrs X has exercised her right to appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman