Summary: We cannot investigate Ms X’s complaint the Council failed to update her child, Y’s Education and Health Care Plan and misled her about a reassessment for additional support. This is because Ms X has used her right of appeal to a tribunal and the issues she raises are not separable from that appeal.

The complaint

1. Ms X complained about the Council’s refusal to update her child’s, Y's Education and Health Care (EHC) Plan while it was under appeal with the SEND Tribunal. She said the Council:
• was aware the EHC Plan was incomplete and would leave Y without the necessary provision; and
• led her to believe it would carry out a reassessment to include additional provision in Y’s EHC Plan.
2. Ms X said the Council’s failure to provide adequate provision, caused avoidable distress, leaving Y vulnerable and Ms X feeling helpless. She wants the Council to address her concerns, carry out the reassessment as promised and reissue Y’s EHC Plan.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.

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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. Ms X’s child, Y, has an EHC Plan.
9. Ms X said during a co-production process meeting in May 2024, the Council agreed the provision in Y’s EHC Plan needed to be increased and promised to arrange a reassessment with an Educational Psychologist (EP).
10. The Council issued Y’s final EHC Plan before this reassessment took place.
11. Ms X said the EHC Plan now lacks the provision that the Council agreed to include after Y’s reassessment. She exercised her right to appeal the content of the EHC Plan to the Tribunal.
12. Ms X then contacted the Council, requesting a review of the EHC Plan during the appeal process as she remained unhappy with its current provision.
13. The Council said it was not willing to update Y’s EHC Plan during the appeal process, but it was open to continuing the working document approach with Ms X allowing her to make necessary revisions without creating a new plan. It also confirmed it would proceed with Y’s next annual review as scheduled.
14. We cannot investigate Ms X’s complaint. This is because Ms X has used her right to appeal the EHC Plan to the Tribunal.
15. Ms X’s complaints about the Council misleading her about the EP’s reassessment and its refusal to review the EHC Plan are not separable from the matter brought to the Tribunal which is about Ms X’s disagreement with the content of the EHC Plan.
16. Where someone has appealed to a Tribunal about a matter, the law says the Ombudsman cannot investigate the same matter.

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Final decision

17. We cannot investigate Ms X’s complaint because issues raised are not separable from her appeal to the SEND Tribunal.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman