Summary: We cannot investigate this complaint about the complainant’s daughter’s Education Health and Care Plan and educational provision. This is because she has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, who I will refer to as Mrs X, complains that the Council failed to assess her daughter’s needs before issuing her Education Health and Care Plan (EHCP) for transfer to further education, and failed to make any educational provision for her for a term.

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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. (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.

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How I considered this complaint

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

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My assessment

7. Mrs X’s daughter has special educational needs and an EHCP. Mrs X’s complaint concerns the process of assessing her daughter’s needs before transfer to further education in September 2022, and the Council’s failure to make educational provision during the subsequent term.
8. The evidence shows that the Council issued the EHCP in March 2022. Mrs X asserts, and the Council accepts, that it did so without proper consultations and without taking her daughter’s wishes into account. The Council has apologised for this failure.
9. It is Mrs X’s view that as a result of the fault on the Council’s part, it named a college in the EHCP which could not meet her daughter’s needs. She therefore used her right to appeal to the SEND Tribunal. Mrs X says that while waiting for the appeal, which she subsequently won, the Council failed to make any provision for her daughter’s education or special educational needs, causing her to miss a term of education.
10. The Ombudsman cannot investigate Mrs X’s complaint because she used her right to appeal to the SEND Tribunal. When an appeal has been made, the law provides that we cannot investigate the matters which are the subject of the appeal. We cannot therefore consider whether there was fault in the content of the EHCP issued in March 2022.
11. The courts have established that if someone has lodged an appeal to the SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHCP we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
12. The failure to consult during the assessment process and the failure to make educational provision throughout the term beginning September 2022 are clearly inextricably linked to the matters which were the subject of the appeal. As such, we cannot investigate them. There is no discretion available to us.

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Final decision

13. We cannot investigate Mrs X’s complaint because she has used her right to appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman