The Ombudsman's final decision
Summary: We cannot investigate this complaint about the Council’s response to the complainant’s daughter’s special educational needs. This is because the substantive matters fall outside the Ombudsman’s jurisdiction.
The complaint
The complainant, who I will refer to as Mrs B, complains that the Council has failed to take appropriate action in respect of her daughter’s educational provision and 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 complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended) The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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) 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.
The complainant has had the opportunity to comment on my draft decision.
My assessment
Mrs B’s daughter has special educational needs. She does not have an Education Health and Care Plan (EHCP), though Mrs B says the Council has agreed to carry out an Education Health and Care Needs Assessment (EHCNA).
Mrs B complains that her daughter’s school initially refused to ask the Council for an EHCNA and failed to request appropriate assessments. She argues that the policy on which the decision not to apply for an EHCNA was based is flawed and causes unnecessary delay in addressing special educational needs. She believes the school’s actions amounted to a failure to make reasonable adjustments, and caused her daughter to miss out on support which should have been provided.
Mrs B further complains that, once an EHCNA was requested, the Council refused the request. She feels the Council’s decision was wrong, and that it caused her daughter to remain on roll at a school which could not meet her needs. I understand that, following mediation, an EHCNA is now underway.
The Ombudsman cannot investigate Mrs B’s complaint. By law, we cannot investigate what happens in schools unless it relates to the delivery of education to a child with an EHCP. Therefore, Mrs B’s complaint about the school’s actions falls outside the Ombudsman’s jurisdiction. There is no discretion available to us.
We will not investigate Mrs B’s complaint about the Council’s initial decision not to carry out an EHCNA. I understand that this decision has now changed. But, if it had not, Mrs B would have had the right to appeal to the SEND Tribunal. Where an appeal right exists, the Ombudsman usually expects it to be used. It would have been reasonable to do so in this case if the Council’s decision had not changed.
Final decision
We cannot investigate this complaint. This is because the substantive matters fall outside our jurisdiction.
Investigator's decision on behalf of the Ombudsman