Summary: We will not investigate this complaint about the Council’s actions when her child’s Education, Health and Care Plan was transferred from another Council’s area. This is because Mrs X appealed to the First-tier Tribunal (Special Educational Needs and Disability). This places most of the complaint outside our jurisdiction. The delay in carrying out the Tribunal’s decision is not enough to warrant us investigating. We will not look at the Council’s complaint handling as a standalone issue.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained the Council failed to provide her daughter with a suitable education after she moved into its area. Mrs X is unhappy with how the Council dealt with her daughter’s Education, Health and Care Plan (EHC Plan) including its content. Mrs X is unhappy with the Council’s conduct during her appeal to the First-tier Tribunal (Special Educational Needs and Disability). Mrs X complained to the Council several times and says it did not respond.

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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.
3. 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)
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.
5. 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:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

6. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

7. I considered information provided by the complainant.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Mrs X moved into the Council’s area in August 2023. Mrs X’s child has an EHC Plan which she had already appealed to the SEND Tribunal in June 2023.
10. We will not start an investigation into Mrs X’s complaint.
11. Where appeal rights have been used, the matter is outside our jurisdiction from the point at which the appeal rights were available until the SEND Tribunal issues its decision. This exclusion applies to any matter closely related to the appeal.
12. Mrs X says the Council failed to provide her child with a suitable education. But this issue is too closely linked to the appeal to the SEND Tribunal and so we cannot consider it. We also have no jurisdiction to consider the Council’s actions during Mrs X’s appeal. This includes the evidence presented to the Tribunal and the actions of the Council’s officers. We have no jurisdiction to consider Mrs X’s complaint until the Tribunal issued its decision.
13. Once the SEND Tribunal issued its decision the Council had five weeks to do what had been ordered. The Council took slightly longer than this, but the fault or injustice is not enough to warrant us investigating.
14. From the evidence available it is clear the Council has not responded to Mrs X’s complaints, and that is disappointing. But we cannot consider the Council’s actions in relation to something which is outside our jurisdiction. So, as above, the period when Mrs X had appealed to the SEND Tribunal is outside our jurisdiction. We could look at the Council’s failure to respond to Mrs X’s complaints once the Tribunal had issued its decision. But it is not a good use of our resources to look at complaint handling as a standalone issue if we are not going to look at the issue which led to the original complaint. This applies here and so we will not investigate.

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Final decision

15. We will not investigate Mrs X’s complaint because:
• She appealed to the SEND Tribunal. This places most of the complaint outside our jurisdiction.
• The delay complained about once the SEND Tribunal issued its decision is not significant enough to warrant an investigation.
• We will not look at complaint handling as a standalone issue.

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Investigator's decision on behalf of the Ombudsman