Summary: We will not investigate this complaint about fault in the process of assessing the complainant’s son’s education, health and care needs. This is because the law prevents us from investigating matters relating to the content of the Education Health and Care Plan, and our intervention would not add anything to the apology the Council has already made for the delay on its part.

The complaint

1. The complainant, Mrs X, complains that the Council has been at fault in the process of assessing her son’s education, health and care needs.

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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. 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. 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. 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 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

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. Mrs X’s son has been the subject of an Education Health and Care Needs Assessment leading to the production of an Education Health and Care (EHC) Plan. Mrs X complains that the Council was at fault throughout the process.
9. Specifically, Mrs X complains about a lack of communication with her, about delay in consulting her preferred school and about errors in the final EHC Plan. She contends that, as a result of the fault on the Council’s part, her son does not have a school place and she has been compelled to appeal to the SEND Tribunal.
10. Mrs X further complains that the completion of the EHC Plan took longer than the 20 weeks allowed in the statutory process.
11. The Ombudsman will not investigate Mrs X’s complaint. By law, we cannot consider matters relating to the content of the EHC Plan. The fact that Mrs X has used her right to appeal to the SEND Tribunal places these matters outside our jurisdiction.
12. The courts have established that if someone has appealed to the SEND Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207). This prevents us from considering what happened during the production of Mrs X’s son’s EHC Plan. There is no discretion available to us.
13. The only exception is the delay in issuing the EHC Plan, which does fall to us to consider. The parties agree that the EHC Plan was issued four weeks later than it should have been. The Council has apologised. An apology is a reasonable response in the circumstances and our intervention is unlikely to achieve anything more.

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Final decision

We will not investigate Mrs complaint because matters relating to the production and content of the EHC Plan fall outside our jurisdiction, and our intervention would not add anything to the apology the Council has already made for the delay in issuing the EHC Plan.

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Investigator's decision on behalf of the Ombudsman