The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint about how the Council dealt with matters concerning a tribunal appeal, or about the education and special educational needs provision provided by the Council. The law prevents us from investigating complaints about matters subject to appeals to a tribunal, and investigation into other matters would not lead to a different outcome.
The complaint
Mrs X complains that the Council’s actions during her appeal to the SEND Tribunal delayed her appeal. She complains about the education and Special Educational Needs (SEN) provision arranged during her appeal.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact 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 or continue an investigation if we decide further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B)) 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 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 an Education Health and Care (EHC) Plan for Mrs X’s child. She appealed the contents, including the school named in the plan, to the SEND Tribunal.
I cannot investigate the contents of the EHC Plan because Mrs X used her right of appeal to the SEND Tribunal about this matter. I also cannot investigate the education provision in place during the appeal because this is not separable from the appeal itself. I cannot investigate Mrs X’s complaint that the Council’s actions during her appeal led to delays. The way the council conducts itself during the appeal process is a matter for the Tribunal.
Councils have a duty to arrange the SEN provision detailed in Section F of an EHC Plan and in this case this is separable from the appeal. However, the Council has apologised for not arranging some of the provision in the EHC Plan and has reimbursed Mrs X for provision she arranged herself. This is a proportionate response and therefore investigation into this point would not lead to a different outcome.
Final decision
We will not investigate Mr X’s complaint because the law prevents us from investigating complaints about matters subject to appeals to a tribunal and investigation into other matters would not lead to a different outcome
Investigator's decision on behalf of the Ombudsman