The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint about the Council’s provision of education and support to Mrs X’s child. She has appealed to the Tribunal.
The complaint
The complainant, whom I shall call Mrs X, says the Council has failed to provide her child, Y, with an education since the beginning of January 2022.
The Ombudsman’s role and powers
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.
The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended) We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended) We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered information provided by Mrs X.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs X says the Council issued a Final Education Health and Care Plan (EHC Plan) for her child, Y, in mid December 2021. It named School Z as the location for Y’s education.
Mrs X says School Z became unsuitable and Y has not attended school since the beginning of January 2022. She says the Council held an emergency review of Y’s EHC Plan in early February 2022. She says it then delayed in issuing the required notice confirming the Council’s intention not to amend the EHC Plan following the review.
By the time Mrs X had complained to us, the notice had been issued and she had appealed to SEND. She says the Council should still provide education in the meantime and in particular the extra support Y should receive.
Background law A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
There is a right of appeal to the SEND Tribunal against a decision not to amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
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 engaged 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).
Analysis Mrs X had a right of appeal of the EHC Plan issued in mid December if she felt School Z or any other part of the EHC Plan did not meet Y’s needs. This appeal right ran until mid February, so until after the review meeting. If Mrs X did not believe the EHC Plan met Y’s needs it is reasonable to expect her to have appealed.
Mrs X has now appealed and we cannot consider the education provision to Y from the date the appeal right arose. The gap between the first appeal right and the second appeal right is not a significant enough loss of provision to justify an investigation.
Final decision
We will not investigate Mrs X’s complaint because it is reasonable to expect Mrs X to appeal and we cannot consider Y’s provision during the appeal.
Investigator's decision on behalf of the Ombudsman