The Ombudsman's final decision
Summary: We cannot investigate Mr X’s complaint about the Council’s failure to secure a suitable educational setting for his child, and the suitability of remedy it provided. This is because it was reasonable for Mr X to appeal to the Tribunal.
The complaint
Mr X complains the Council: failed to secure a suitable school for his son, Y in a timely manner. Y has been out of education since October 2023; provided a financial payment to remedy the missed provision which he feels is insufficient, and; failed to appropriately communicate with him.
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 has a right of appeal, reference or review 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 use this right. (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.
My assessment
The Council issued Y’s final Educational, Health and Care (EHC) Plan in September 2023. No school was named in the final EHC Plan as the Council had not identified a suitable setting.
The lack of named placement in the Y’s final EHC Plan carried a right of appeal to the SEND Tribunal, and it was reasonable for Mr X to use this. Any injustice due to a lack of educational provision is not separable from this point of appeal. Therefore, I cannot investigate Mr X’s complaint.
I appreciate Mr X is unhappy with the Council’s handling of the matter and its communication, however it is not good use of public resources to investigate this part of his complaint in isolation when I cannot investigate the substantive matter.
Final decision
We cannot investigate Mr X’s complaint because it was reasonable for him to use his right of appeal.
Investigator's decision on behalf of the Ombudsman