The Ombudsman's final decision
Summary: We cannot investigate this complaint about how the Council considered a request for an auditory learning device. The complainant has lodged an appeal at the Tribunal therefore we have no jurisdiction to investigate.
The complaint
Ms X complained about how the Council dealt with her request for an auditory listening device (ALD) for her son Y. She said it did not consider evidence from school and a hearing expert that he would benefit from the ALD. She said as the Council considered the request outside of the annual review process for Y’s Education Health and Care plan (EHC plan), she could not challenge the Council’s decision. She also said as the Council did not complete minutes of the Panel that discussed the request, there was a lack of transparency around its decision making.
Ms X said the Council’s actions had delayed Y’s access to an ALD.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (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 Ombudsman investigates 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 may decide not to continue with an investigation if we decide: there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained, or further investigation would not lead to a different outcome.
(Local Government Act 1974, section 24A(6)) It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
Ms X had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
Background
Ms X appealed to the SEND Tribunal about the provision in Y’s EHC plan. The SEND Tribunal directed the Council to complete a functional assessment to see if Y needed specialist equipment for an auditory disorder.
The Council’s EHC Panel considered the outcome of that assessment in November 2021. It decided there was not enough evidence to support Y needing the ALD. The Council reviewed that decision as part of Y’s annual EHC plan review. It agreed to provide the ALD and purchased it in July 2022. The Council did not specify the type of ALD to provide in the EHC plan.
Ms X disagreed with the ALD the Council purchased. She lodged an appeal at the SEND Tribunal about the ALD provision specified in Y’s EHC plan.
My decision We will not investigate Ms X’s complaint for the following reasons: The Council has already reviewed its decision on the ALD and agreed to provide one. That does not mean there was any fault in how the Council made its original decision. In any case, as the Council has reviewed that decision, there is nothing worthwhile to be achieved by further investigation.
Following the annual review the Council provided an ALD, but Ms X does not consider the device purchased as suitable for Y. Therefore, any alleged delay in the Council obtaining the device has not caused Y a significant injustice as it is not being used.
Ms X is appealing Y’s EHC plan and the ALD provision. Therefore her complaint about ALD provision is outside our jurisdiction. We could not consider it until the Tribunal is complete. However, even then we would not investigate for the reasons set out in a) and b).
Ms X also complained about the Council did not keep minutes of the SEN Panel. Although the Council does not keep verbatim minutes; it keeps a record of the Panel’s decision making. It sent Ms X an email with the outcome of the meeting explaining its reasoning. There is insufficient evidence of fault in how the Council administers those meetings to justify further investigation.
Final decision
We cannot investigate this complaint as it is about provision in an EHC plan which is under consideration at SEND Tribunal. Therefore, we have no jurisdiction to investigate.
Investigator's decision on behalf of the Ombudsman