Summary: We will not investigate this complaint about the Council forcing Mr X to approach the Special Educational Needs and Disability Tribunal to challenge the school it named on his child Education Health and Care Plan. The key issue is the school the Council named, which was decided by the Tribunal, which we cannot investigate. The involvement of the Tribunal means investigation by us of the inability of the Council to offer mediation about the school named would not lead to a worthwhile outcome.

The complaint

1. Mr X said he has no choice but to go to the Special Educational Needs and Disability Tribunal after the Council told him it had been unable to arrange mediation of his child’s disputed Education Health and Care Plan. He wants the Council to pay the costs he incurred.

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The Ombudsman’s role and powers

2. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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.

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How I considered this complaint

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The issue at the centre of the complaint is that Mr X had to go to the SEND Tribunal after the Council named a school that he says could not meet his child’s needs on an Education Health and Care (EHC) Plan. There is no dispute that Mr X had to go to the Tribunal.
8. We cannot investigate a complaint about the Council’s choice of school for the EHC Plan. That decision carried a right of appeal to the SEND Tribunal, which Mr X used.
9. Where a council with education responsibilities is unable to arrange mediation after issuing an Education Health and Care (EHC) Plan, it must offer a parent a right of appeal to the SEND Tribunal. That the Council did this in Mr X’s case is not evidence of fault.
10. Investigation by us of the Council’s inability to arrange mediation would not lead to a worthwhile outcome. We could not say this was fault, or that the Council was wrong to name the school it did, or that it should pay Mr X’s costs as a result.

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Final decision

11. We will not investigate Mr X’s complaint because this would not lead to any worthwhile outcome. There is no evidence of fault in the Council referring Mr X to the SEND Tribunal when it could not arrange mediation, and the key issue of school suitability was decided by the Tribunal. We cannot recommend any payment of costs Mr X incurred in pursuing the matter.

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Investigator's decision on behalf of the Ombudsman