The Ombudsman's final decision
Summary: We cannot investigate Mrs X’s complaint about the how the Council consulted with schools as part of her child’s Education, Health and Care Plan because she has appealed to a Tribunal. We will not investigate Mrs X’s complaint about the Council’s complaint handling because an investigation is unlikely to achieve any additional outcome.
The complaint
Mrs X complained about failures in the Council’s school consultations as part of a review of her child, Y’s, Education, Health and Care (EHC) Plan. Mrs X also complained about the Council’s complaints process.
Mrs X said the matter caused her frustration and uncertainty.
Mrs X wants the Council to name a specialist school in Y’s 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 about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (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.
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, or there is no worthwhile outcome achievable by our investigation.
(Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
School consultations Mrs X complained about the Council’s consultations with schools and the decision to name a mainstream school in her child, Y’s, EHC Plan. Mrs X said the Council’s failures meant Y missed out on a placement at a special school.
We cannot investigate this complaint. This is because Mrs X has used her right to appeal the content of Y’s EHC Plan to the SEND Tribunal. The Tribunal has the power to determine what school Y should attend. Consequently, any matters relating to school consultations are too closely linked to the matters under appeal, and the law says we cannot investigate.
Complaints process Mrs X said she originally complained to the Council by phone and was told her complaint would be logged and investigated. Two months later she contacted the Council for an update and was told her complaint was not logged.
We will not investigate this complaint. This is because in its complaint response the Council accepted it had not responded to Mrs X’s original phone complaint. It apologised for this and said it reminded call centre officers that complaints received by phone should be logged and progressed.
An investigation by the Ombudsman is unlikely to achieve any additional outcome, and so we will not investigate.
Final decision
We cannot investigate Mrs X’s complaint about the how the Council consulted with schools as part of her child’s Education, Health and Care Plan because she has appealed to a Tribunal. We will not investigate Mrs X’s complaint about the Council’s complaint handling because an investigation is unlikely to achieve any additional outcome.
Investigator's decision on behalf of the Ombudsman