Posted: 24th August 2021
Author: CLP

What is the Ombudsman’s role in complaints about special educational needs?

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The Ombudsman can investigate a complaint that a Local Authority has failed to appropriately address a child’s special educational needs (SEN). This includes delay in assessing a child and issuing an Education Health and Care Plan (EHCP) and failing to implement an EHCP or carry out an annual review.

If your child has an EHCP, the Local Authority has an obligation to work with the school to ensure your child gets the provision set out the plan. The Ombudsman can look at the school’s role in delivering the provision and how the Local Authority ensured the school provided the support as set out in the EHCP. If you complain about the Local Authority failing to arrange and maintain the specified provision, The Ombudsman can investigate but can only make findings about the Local Authority, not the school.

If The Ombudsman find fault causing injustice, they can make recommendations for what the Local Authority needs to do.

The law prevents The Ombudsman from investigating complaints when the issues it raises can be dealt with through an appeal to the First Tier Tribunal (Special Educational Needs and Disability) (SEND)

If you have appealed to SEND, it is unlikely The Ombudsman will be able to investigate any aspect of a complaint, such as interim provision, while the appeal is being heard. However, this will depend on the specific circumstances of each case.

The Ombudsman can investigate complaints of the following:

  • If a Local Authority has failed to appropriately address a child’s special educational needs.
  • If there is a delay in assessing a child and issuing an Education Health and Care Plan.
  • Failing to implement an EHCP or carry out an annual review.
  • If a Local Authority has failed to implement a Tribunal recommendation related to educational provision in an EHCP.
  • Where a recommendation has been agreed, a failure to deliver the provision.
  • The national pilot scheme also allows complaints about failure to implement recommendations related to social care provision in an EHCP.
  • If the Local Authority is taking longer than 5 weeks to reach a decision about whether to agree to implement a Tribunal recommendation.
  • How the Council has dealt with a request for a personal budget or involved children and young people over 16 in decision making.
  • Complaints about the Local Offer.

The Ombudsman cannot criticise a decision made by a Local Authority if it has followed the right processes in coming to that decision.

How do I make a complaint?

The Ombudsman advises that you should firstly complain to the Local Authority as they often have more than one stage in their complaint’s procedure, and you will have to complete all of those stages before The Ombudsman will look at your complaint.

If you are then unhappy with the outcome, or the Local Authority has taken more than 12 weeks to respond to you, you can complain to The Ombudsman.

The Ombudsman advises that you make your complaint within 12 months of realising that the Local Authority has done something wrong.

What will the remedy be if the Ombudsman find the Local Authority is at fault?

If the Ombudsman finds fault in how the Local Authority has addressed your child’s special educational needs, they will consider the effect on you and your child.

They may suggest a remedy ranging from an apology through to a financial remedy. Where possible, The Ombudsman recommend action to put the person back in the position they would have been, had the fault not happened.

The Ombudsman will recommend that the Local Authority take action to address any loss of provision such as providing extra help for your child and will ask for continuing failings to be put right as quickly as possible.

If you require any further guidance on education law, please contact us on 01329 823322