The Ombudsman's final decision
Summary: We cannot investigate this complaint that the Council has been at fault in its response to the complainant’s child’s special educational needs. This is because they have used their right to appeal to the First-tier Tribunal (Special Educational Needs and Disability), and this places the matter outside our jurisdiction.
The complaint
The complainant, who I will refer to as B, complains that the Council was at fault in its response to their child’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 cannot investigate a complaint if someone has appealed to a tribunal. (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 cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
The complainant has had the opportunity to comment on my draft decision. I considered their comments before making a final decision.
My assessment
B’s child has special educational needs and an Education, Health and Care Plan (EHCP). B complains that the Council excluded them from the process of identifying and addressing their child’s needs and that, as a result, the child missed out on transition planning and was denied an appropriate school place until June 2022.
The evidence I have seen shows that the Council received two requests for an Education, Health and Care Needs Assessment (EHCNA). On both occasions, it decided the threshold for an assessment was not met. B complains that the Council’s decision on the request made in May 2022 was flawed. They believe the Council failed to properly consider the matter and disregarded important evidence. They also say their preference for a specific school, which their child now attends and is named on the EHCP, was not considered. This is despite the fact that they were asked to express a preference.
B believes the Council’s refusal to carry out an EHCNA denied their child the opportunity of a planned transition to an appropriate school. B says they were compelled to correct the Council’s errors. As a result of the fact that no EHCP was in place, the child was inappropriately offered a school which did not meet their needs, in the knowledge that B would not send them there. They therefore missed out on a school place for transition in September 2021, and the transition planning they should have had.
The Ombudsman cannot investigate B’s complaint. By law, we cannot consider whether the decision not to carry out an EHCNA was flawed. This is because the law provides a recourse for B by way of an appeal to the SEND Tribunal. B lodged an appeal, and this places all matters relating to the Council’s decision, including its consequences, outside our jurisdiction. This is the case whether or not the appeal went to a hearing. I cannot therefore consider whether the alleged fault had the impact B alleges.
B contends that the law fails to protect parents and children and allows councils to act against their interests without consequences. I can make no comment on this point. There is no discretion available to me.
B further complains about what they see as fault on the part of the Council’s Learning Support Service. As the service’s involvement with B’s child took place before they had an EHCP it falls outside our jurisdiction. This is because the law says the Ombudsman cannot consider what happens in schools.
Final decision
We cannot investigate this complaint. This is because B has used the right to appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman