Summary: We cannot investigate this complaint about the Council’s decision not to name a school in an Education, Health, and Care Plan. Miss X has already appealed the Council’s decision, and the law does not allow us to investigate. Nor will we investigate any complaint about delays in finalising the plan. This is because the Council upheld this part of Miss X’s complaint and agreed to remedy her outstanding injustice.

The complaint

1. Miss X complained the Council failed to name a school in her child (Y’s) Education, Health, and Care (EHC) Plan. She also said the Council delayed finalising Y's EHC Plan. Miss X was also unhappy with how the Council had communicated with her over this matter.
2. Miss X said the Council’s actions meant she had a delayed right of appeal, and this caused avoidable uncertainty.

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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. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
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.
6. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)

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How I considered this complaint

7. I considered information provided by Miss X and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Miss X was unhappy the Council did not name a school in her child’s EHC Plan. We cannot investigate this part of Miss X’s complaint because Miss X appealed to the Tribunal about the Council’s decision, and the law (paragraph four) does not allow us to investigate.
10. Miss X was also unhappy the Council delayed finalising Y’s EHC Plan beyond the required timescales and said its communication with her was poor. If we investigated this part of Miss X’s complaint, we would find the Council at fault because it took over 32 weeks to issue Y’s EHC Plan, where it should have completed it within 20 weeks.
11. The Council also accepted its contact with Miss X fell below standards it expected. Collectively, this led to avoidable uncertainty and a delayed right of appeal to the Tribunal, and was an injustice to Miss X.
12. We therefore asked the Council to consider remedying Miss X’s injustice by paying her a symbolic financial remedy to resolve the complaint early. To its credit, the Council agreed to do this within two weeks of my final decision.

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Final decision

13. We cannot investigate Miss X’s complaint about its decision because Miss X has used an alternative legal remedy. Additionally, we will not investigate a complaint about delays and poor communication. We have upheld this part of the complaint, and the Council have agreed to provide a proportionate remedy for Miss X’s injustice.

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Investigator's decision on behalf of the Ombudsman