The Ombudsman's final decision
Summary: We will not investigate this complaint about how the Council carried out a review of the complainant’s daughter’s Education Health and Care plan. This is because investigation would not lead to a different outcome and because it is reasonable for the complainant to use their right of appeal to a tribunal.
The complaint
Mrs X complains about how the Council carried out a review of her daughter’s Education Health and Care (EHC) plan. Mrs X says the caseworker who attended her daughter’s annual review showed a lack of understanding by addressing her attendance and grades. Mrs X wants the caseworker to either apologise or be replaced. Mrs X also wants the Council to issue an EHC plan that can meet her daughter’s needs and to agree to a personal budget to pay for a course.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B)) The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (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.
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
In responding to Mrs X’s complaint, the Council apologised for any distress caused to Mrs X’s daughter during the annual review. It said that it did not consider it appropriate to change caseworkers but did say it would remind staff of the importance of showing understanding during the review process. The Council provided Mrs X with information about how she could apply for a personal budget. The Council has since issued a final EHC plan.
I will not investigate Mrs X’s complaint. This is because the Council has taken reasonable steps to address the issues raised by Mrs X in her complaint by apologising, reminding staff of the importance of showing understanding and informing her how to apply for a personal budget. We cannot instruct the Council to change caseworkers, because it is for the Council and not the Ombudsman to decide how staff are allocated. Further investigation would therefore not lead to a different outcome.
I cannot investigate Mrs X’s complaint about the contents of her daughter’s EHC plan. This is because it is reasonable for Mrs X to use her right of appeal to the SEND Tribunal if she is dissatisfied with the plan. Only the SEND Tribunal can instruct councils to amend final EHC plans.
Final decision
We will not investigate Mrs X’s complaint because doing so would not lead to a different outcome and it is reasonable for her to appeal the contents of the EHC plan to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman