Summary: We will not investigate this complaint about an alledged failure by the Council to provide appropriate educational support to complainants’ son who has special educational needs. This is because the complainants have a right of appeal to a statutory tribunal which they could reasonably exercise. We have no legal jurisdiction to investigate in such circumstances.

The complaint

1. The complainants (Mr and Mrs Z) complain about an alledged failure by the Council to provide their son (Child X), who has special educational needs (SEN), with appropriate support using an Education and Health Care plan (EHC plan). Specifically, they disagree with the assessment of Child X’s needs and have therefore requested reassessment of these. Moreover, Mr and Mrs Z complain about teacher misconduct at the school Child X attends. They also say the Council has not responded to their complaint in a timely manner.
2. In summary, Mr and Mrs Z say the alledged fault is causing Child X to miss out on educational support he is entitled to receive. They also say the issues has caused them significant stress and uncertainty. As a desired outcome, Mr and Mrs Z want the Council to provide the support they consider Child X is entitled to receive.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended).
4. 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).
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended).

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How I considered this complaint

6. I considered information provided by the complainant and the Council. I also considered the Ombudsman’s Assessment Code.

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My assessment

7. Following Mr and Mrs Z making a complaint to the Council, it has issued an amended final EHC plan. Where there is a dispute about the contents of an EHC plan, this carries a right of appeal to Special Educational Needs and Disability (SEND) Tribunal. As I understand, Mr and Mrs Z are requesting a reassessment of Child X’s needs to inform EHCP provision. In my view, this is clearly because they disagree with previous assessments of need used to inform what support should be made available. This brings the complaint into being an appealable issue to the SEND Tribunal. I note the Council informed Mr and Mrs Z of this appeal right and in my view, there is no evidence to suggest it would be unreasonable for them to exercise this right. For the reasons given in paragraph four (above), we have no jurisdiction to investigate this part of the complaint.
8. With respect to the issue of teacher misconduct referenced in Mr and Mrs Z’s complaint to the Council, this is not a matter we have jurisdiction to investigate. For the reasons stated in paragraph five (above), we cannot investigate what happens in schools. I also note Mr and Mrs Z’s relates to the Council’s complaint handling, in particular about the time it has taken to respond to their concerns. We normally do not investigate complaints about the complaints process where we cannot deal with the substantive issue as this would not be a good use of public resources. Given we cannot deal with the substantive issues raised by Mr and Mrs Z, I am exercising my general discretion to not investigate any issues relating to the Council’s complaint handling.

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Final decision

9. We will not investigate this complaint. This is because the restrictions I outline at paragraphs three to five (above) apply.

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Investigator's decision on behalf of the Ombudsman