The Ombudsman's final decision
Summary: We will not investigate Miss X’s complaint about the Council’s failure to lodge an appeal. It is not possible to establish the in injustice until a Tribunal’s outcome is known.
The complaint
The complainant, whom I shall call Miss X, says the Council failed to lodge an appeal on her behalf to SEND.
The Ombudsman’s role and powers
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 a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered information provided by Miss X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Miss X says that in December 2021 the Council agreed it would submit an appeal on her behalf to the Tribunal, SEND for her child B’s Education Health and Care Plan (EHC Plan). Miss X says it failed to do so.
The Council in reply to her complaint, accepted it had agreed to do this. It also accepted that it failed to follow this up in March having agreed to do.
Miss X has since appealed to SEND and it has accepted her late appeal. The hearing is due in late November.
We cannot assess the injustice to Miss X and B until the Tribunal’s outcome is known.
Final decision
We will not investigate Miss X’s complaint about an appeal delay because the injustice will not be known until the Tribunal appeal result is known.
Investigator's decision on behalf of the Ombudsman