Summary: We will not investigate Ms X’s complaint about Education Health and Care Plan delays following an annual review. We are unlikely to achieve a remedy significantly different to the financial offer the Council made. We cannot investigate parts of Ms X’s complaint which are not separable from a Tribunal appeal.

The complaint

1. Ms X says the Council delayed in processing an Education Health and Care Plan (EHC Plan) annual review and has failed to provide a suitable education and educational support set out in an 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 regarding 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 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. 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:

• we could not add to any previous investigation by the organisation; or
• further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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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. Ms X is the mother to B, who has an EHC Plan. Ms X says B stopped attending school in January 2024. The Council says it first knew this in April 2024.
8. Ms X says the Council failed to follow the correct procedure following an annual review of B’s EHC Plan held in April 2026. The Council has accepted it delayed by over two months outside the EHC Plan regulations timescales, to tell Ms X it planned on making no change to B’s EHC Plan. It told her this in August 2024. Ms X disagrees with its decision. She believes the EHC Plan needs changing to Education Other than At School (EOTAS). She has appealed the Council’s decision not to change the EHC Plan to the Tribunal.
9. The Council offered Ms X £200 for the annual review follow up delays. This offer is inline with our usual recommendations and our investigation is unlikely to achieve more for this.
10. Ms X says the Council has failed to provide B with a suitable education. She says it has failed to provide the support set out in B’s EHC Plan.
11. We cannot look at the period following the Council’s notification that it would not change the EHC Plan. This was provided in August 2024. This is because Ms X has appealed to the Tribunal. We cannot investigate if the Council should provide an alternative to that set out in the EHC Plan as what education and support should be provided and how is the subject of the Tribunal appeal. This includes the support such as SALT. The Council says it is not being provided because B is not attending the school. Whether B should attend that school is for the Tribunal to decide.
12. The Council says that once it became aware of B’s absence from school, it offered other provision to the school. It says Ms X refused these options as she wanted EOTAS and a personal budget. We are unlikely to find fault in the Council’s decision to refuse this given it has since issued a ‘ no change’ to the EHC Plan notice and this is being appealed. In any event the Council has offered £2400 for missed education between May and July 2024 and this is within our Guidance on Remedies scale. We are unlikely to achieve more.

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Final decision

13. We will not investigate Ms X’s complaint because we cannot investigate issues which are not separable from a Tribunal appeal. And we are unlikely to achieve a significantly different remedy to that offered by the Council for a delay in issuing an annual review outcome and missed education.

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Investigator's decision on behalf of the Ombudsman