The Ombudsman's final decision
Summary: We will not investigate this complaint how the Council assessed a child’s needs and how it managed the child’s education while a tribunal considered an appeal. This is because the matter complained about is not separable from the appeal, and the courts have ruled we cannot say what education should be provided in such circumstances.
The complaint
The complainant, who I will call Mr X, complains that the Council issued an inadequate Education Health and Care (EHC) plan, meaning he had to appeal to the Special Educational Needs and Disability Tribunal. Mr X says his son went without adequate education provision whilst the Tribunal considered his appeal. Mr X also says the Council delayed issuing his son’s final EHC plan.
The Ombudsman’s role and powers
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact 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 or may decide not to continue with an investigation if we decide any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6)) 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.
The courts have held that where someone has appealed to the SEND Tribunal, we have no authority to consider what educational provision should be made for the child concerned. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999); R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X’s son, Z, has Special Educational Needs and is therefore subject to an Education Health and Care (EHC) plan. The Council issued a final plan which Mr X appealed to the SEND Tribunal. Mr X says Z was unable to attend school because the EHC plan did not contain the appropriate support.
We cannot investigate Mr X’s complaint about the contents of his son’s EHC plan. This is because this has been subject to an appeal to a tribunal. This places this matter outside of the Ombudsman’s jurisdiction.
We can only investigate a complaint about a Council’s duty to arrange alternative education provision if the matter is separable from an appeal to the SEND Tribunal. That would require the reason for absence to be unconnected to the reason for the appeal.
The above is not the case here. The reason Mr X’s son has not been able to attend school appears too closely linked to her special educational needs and the provision that the Council decided could meet his needs These are set out in the EHCP which Mr X has appealed to the SEND Tribunal.
There was a delay of around five weeks in the Council completing its assessment of Z’s Special Educational Needs and issuing a final EHC plan. However, having carefully considered this point I do not consider that this has caused either Mr X or Z a significant enough injustice to warrant further investigation. I also note that the Council did apologise to Mr X for the delay.
Final decision
We will not investigate Mr X’s complaint because the issues raised are not separable from matters subject to an appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman