Summary: We will not investigate this complaint about the Council’s failure to make alternative provision for the complainant’s son while he was out of school, and delays in reassessments of his special educational needs. This is because the matters are not separable from those which are the subject of the complainant’s appeal to the First-tier Tribunal (Special Educational Needs and Disability), or have not caused the complainant so significant an injustice as to warrant the Ombudsman’s intervention.

The complaint

1. The complainant, who I will refer to as Miss X, complains that the Council has:
• failed to make alternative provision for her son while he was out of school;
• failed to issue his amended Education Health and Care Plan (EHCP) within the statutory timescale: and,
• has delayed the reassessment of his special educational needs.

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The Ombudsman’s role and powers

2. 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 or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
3. 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.
4. 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 any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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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. Miss X’s son has special educational needs and an EHCP. She says the school named in the EHCP could not meet his needs and he was unable to access education. She complains that the Council failed to make alternative provision for him while he was unable to attend school, and after she took him off roll.
8. The Council carried out an annual review of the EHCP in 2022. Miss X complains that the amended EHCP was not issued within the statutory timescale. This delayed her ability to appeal to the SEND Tribunal.
9. Since making her appeal, Miss X has requested that the Council reassess her son’s needs. She complains that the reassessment will be delayed by the Council’s failure to arrange an Educational Psychology assessment. The Council accepts that this will be the case.
10. The correspondence shows that the Council has responded to Miss X’s assertion that it was at fault in failing to make alternative provision for her son. It has expressed the view that it made a place at a suitable school available and that appropriate provision was therefore available to him. Miss X disagrees, but that is not a matter on which the Ombudsman can express a view. This is because it is inextricably bound up with the matters which are the subject of Miss X’s appeal to the SEND Tribunal, which is specifically about the suitability of the provision the Council has made and proposes to make. That being the case, it does not fall to be considered by the Ombudsman.
11. It is also the case that Miss X’s subsequent request for reassessment is not separable from the matters which are the subject of the appeal. While the appeal to the SEND Tribunal is outstanding, the Ombudsman can only consider matters which are not linked to the matters the which have been appealed. Miss X’s request for reassessment is not such a matter and, as such, falls outside the Ombudsman’s jurisdiction. There is no discretion available to us here.
12. Turning to the delay in issuing the amended EHCP following the annual review, the Council accepts that it exceeded the statutory timescale by four weeks and has apologised. A four week delay, while frustrating for Miss X, does not, in itself, cause so significant an injustice to warrant the Ombudsman’s intervention, We will not investigate the matter.

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Final decision

13. We will not investigate Miss X’s complaint because the matters are not separable from those which are the subject of the her appeal to the SEND Tribunal, or have not caused her so significant an injustice as to warrant the Ombudsman’s intervention.

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Investigator's decision on behalf of the Ombudsman