The Ombudsman's final decision
Summary: We will not investigate Miss X’s complaint about Education Health Care Plan issues as she has appealed to the Tribunal.
The complaint
The complainant, whom I shall call Miss X, says the Council has delayed in issuing an Education Health and Care Plan (EHC Plan).
The Ombudsman’s role and powers
The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), 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 Miss X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Miss X says that in December 2021 the Council conceded an appeal to the Tribunal SEND, and agreed to issue an EHC Plan. Miss X says the Council should have issued the plan by mid-January 2022 but did not do so until mid-April, a delay of three months. She says her child, D, missed education provision because of the delays.
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.
Miss X has confirmed she appealed the EHC Plan content to the Tribunal. We cannot investigate whether the EHC Plan meets D’s needs as the Tribunal is considering this.
The courts have said that when someone appeals 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 right started 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).
This means that we cannot investigate the education provision since the final EHC Plan was issued in mid-April until the Tribunal finishes. It is also not right to look at the delay between January and April as it is not possible to work out what provision has been lost until the Tribunal’s decision is known.
Final decision
We will not investigate Miss X’s complaint because we cannot investigate the same issue a Tribunal is considering and it is not appropriate to consider the delay until the Tribunal concludes.
Investigator's decision on behalf of the Ombudsman