Summary: We will not investigate this complaint about how the Council managed the Education Health and Care plan process for a child. This is because the complainant has appealed to a tribunal which places part of the complaint outside of our jurisdiction. Further investigation into the rest of the complaint would not achieve a different outcome.

The complaint

1. The complainant, who I will call Miss X, complains about how the Council managed the Education Health and Care (EHC) plan process for her son. Miss X says the Council delayed issuing the EHC plan to her and subsequently named a school that she felt could not meet her son’s needs. Miss X wants the Council to compensate her son for missed education whilst she appealed its decision.

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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 further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (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.  

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How I considered this complaint

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

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My assessment

8. The Council carried out an EHC assessment for Miss X’s son. It completed a final plan in February 2022 naming a type of school placement but has no record that this was sent to Miss X who says she did not receive a copy. It subsequently issued an amended plan naming a school. Mrs X disagreed that the school named could meet her son’s needs so appealed to the SEND Tribunal.
9. I will not investigate Miss X’s complaint that the Council failed to send her a copy of her son’s EHC plan in February, delaying her right of appeal. The Council has apologised to Miss X for this and offered to make a payment to remedy the frustration this caused. The action the Council has taken is proportionate and in line with our guidance on remedies and therefore further investigation into this matter would not lead to a different outcome.
10. I cannot investigate the Council’s decision to name the school in Miss X’s son’s EHC plan, or Miss X’s complaint that the Council did not provide alternative education provision whilst her appeal to the SEND Tribunal was ongoing. When an appeal has been made, the Ombudsman has no jurisdiction to consider related matters from the point at which the appeal rights were available, to the point at which the SEND Tribunal issues its decision. This means the original decision to name the school, and the education provided to Miss X’s son while waiting for the appeal are all outside our jurisdiction.

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Final decision

11. We will not investigate Miss X’s complaint because she appealed to the SEND Tribunal and further investigation into other matters would not lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman