The Ombudsman's final decision
Summary: We will not investigate Miss X’s complaint about providing education to her child Y. We cannot investigate the same issues a Tribunal is considering.
The complaint
The complainant, whom I shall call Miss X, says the Council has failed to provide the education to Y as set out in their Education Health and Care Plan (EHC Plan).
The Ombudsman’s role and powers
We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) 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.
How I considered this complaint
I considered information provided by Miss X which included the Council’s reply to her.
I considered the Ombudsman’s Assessment Code.
My assessment
Miss X says the Council issued an EHC Plan, for her child, Y, in early January 2021. This followed a Tribunal decision in December 2020.
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 assess, issue or 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 assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.
Miss X says the Council failed to provide education as set out in the EHC Plan following its issue. The Council in reply to her complaint has denied this.
Y’s school held an annual review of their EHC Plan in December 2021. The Council told Miss X in January 2022 that it did not intend to amend the EHC Plan. She has appealed this decision to the Tribunal.
We cannot investigate issues which the Tribunal is considering. This means we cannot investigate whether the EHC Plan meets Y’s needs.
The courts have decided that if 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).
We cannot investigate the lack of provision from early January 2022 until the Tribunal finishes. We also could not look at pre-December 2020 provision.
We could look at the provision from January 2021 to January 2022. However, it is not right to do so while the Tribunal continues. We would not be able to find out the injustice to Y until the final EHC Plan is known.
Final decision
We will not investigate Miss X’s complaint because we cannot investigate issues the Tribunal is considering or those inextricably linked to it.
Investigator's decision on behalf of the Ombudsman