The Ombudsman's final decision
Summary: We will not investigate this complaint about the management of the complainant’s son’s special educational needs. This is because there is insufficient evidence of fault on the Council’s part to warrant investigation, and the complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability).
The complaint
The complainant, Ms X, complains that the Council has delayed making appropriate provision for her son’s special educational needs.
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 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 there is not enough evidence of fault to justify investigating. (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 Tribunal in this decision statement.
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)
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Ms X’s child has an Education Health and Care (EHC) plan. Ms X says her child’s current school placement does not meet his needs. She wants the Council to give him a place at a specialist school and make specific therapies available.
In response to Ms X’s complaint, the Council has accepted some failure in its communication, but has shown how it has followed the statutory process for amending the EHC plan. Ms X says that she has submitted an appeal to the Tribunal.
The Ombudsman will not investigate Mrs X’s complaint. It is not for us to take a view on whether her child requires specialist provision. That is a matter to be determined through the review and assessment process. There is no indication of fault in the way this process has been followed and no grounds for the Ombudsman to intervene.
If Mrs X is unhappy with the outcome of the review and assessment, her recourse is to appeal to the Tribunal. The correspondence she has provided shows that she has done so. This means the Ombudsman has no jurisdiction to consider the matter from the point at which the appealable decision was made, and we cannot investigate it.
Final decision
We will not investigate Ms X’s complaint. There is insufficient evidence of fault on the Council’s part, and Ms X has used her right to appeal to the Tribunal.
Investigator's decision on behalf of the Ombudsman