The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s actions during the re-assessment of Miss X’s child’s special educational needs. This is because the matters complained of are not separable from the decision about the nature of the child’s needs and the educational setting needed to meet them. Miss X has used her right of appeal to a Tribunal regarding the content of the Education Health and Care Plan the Council issued and we cannot investigate how it arrived at that content without trespassing on matters subject to the Tribunal appeal. How the Council dealt with Miss X’s complaint about these actions is also closely connected to the matters themselves.
The complaint
Miss X said the Council was not open in its communications with her when it re-assessed her child’s special educational needs and issued a new Education Health and Care (EHC) Plan. She said it also failed to provide the answers it should have done when answering her complaint. She said although the Council has since agreed to update some professional reports, she has had to appeal to the Special Educational Needs and Disability (SEND)Tribunal and the wait for a hearing is long.
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 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) 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.
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.
I considered the Ombudsman’s Assessment Code.
My assessment
It is clear from Miss X’s complaint and the correspondence she sent that the issue at the heart of the complaint is the manner in which the Council acted in moving through the process to issue a final EHC Plan for Miss X’s child. That is closely linked to the decision itself, the provision set out in the Plan and the setting named for it. Miss X is right that waits for SEND Tribunal hearings are long, and I note she says the Council has now agreed to update professional reports for the EHC plan. But neither of these things creates room for us to investigate because the substantive matter is the decision the Council reached in issuing the final EHC Plan. Investigating how the Council responded to Miss X’s complaint about substantive matters we are not investigating would not be a good use of resources.
Final decision
We will not investigate Miss X’s complaint because the matters complained of are not separable from the decisions of the Council about the content of an EHC Plan. Miss X has used her right to appeal to a Tribunal about the content of the EHC Plan and any investigation by us about the matters complained of would be likely to overlap with the role of the Tribunal.
Investigator's decision on behalf of the Ombudsman