Summary: We will not investigate Ms M’s complaint about the Council’s failure to provide speech and language therapy and a delay in telling Ms X the result of an annual review. The Tribunal is considering the education provision.

The complaint

1. The complainant, whom I shall call Ms X, says failed to provide the speech and language therapy (SALT) for D. She says it also delayed in telling Ms X the result of annual review of an Education Health and Care Plan (EHC Plan).

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The Ombudsman’s role and powers

2. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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:
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

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

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My assessment

7. D has an EHC Plan which sets out the educational support they should receive. Ms X says this specifies that D should receive SALT. She says this did not happen between September 2020 and July 2021.
8. Ms X says the Council held an EHC Plan annual review in February 2021 but did not send the notice letter of its result until September 2021. She says this delayed her right to appeal to SEND. She has now done so, and the Tribunal is considering her appeal.
9. We cannot investigate the same issues the Tribunal is considering, which here means what provision D should have.
10. The courts have established that if someone has lodged an appeal to a 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 EHC Plan we cannot seek a remedy for lack of education after the date the appeal was submitted 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).
11. It is not clear how much the SALT provision is inextricably linked to the Tribunal. This will become clearer once the appeal ends. It is not suitable to investigate the lack of provision before the appeal right started until, the Tribunal has ended.
12. We cannot work out the injustice caused by any annual review notification delay until we know the Tribunal outcome.

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Final decision

13. We will not investigate Ms X’s complaint because we cannot investigate the same issues the Tribunal is considering and we cannot establish related matters until them.

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Investigator's decision on behalf of the Ombudsman