The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the provision given during an Education Health and Care Plan appeal and how the Council conducted itself during that appeal. We cannot investigate issues subject to an appeal and it is unlikely we would find fault in the provision offered in the meantime.
The complaint
The complainant, whom I shall call Mr X, says the Council should not have reduced B’s special educational needs provision during an appeal and the Council unnecessarily delayed the appeal.
The Ombudsman’s role and powers
We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (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 Mr X which included a reply from the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X is B’s father. He says B has an Education Health and Care Plan (EHC Plan). He says at B’s annual review in July 2021 the Council said it intended to reduce B’s support significantly. It issued an amended EHC Plan setting this out in early September 2021. It then provided B’s education and support in accordance with that amended EHC Plan.
Mr X appealed to SEND. In February 2022 the Tribunal upheld Mr X’s appeal. The Council issued the final EHC Plan in March reinstating the support.
Mr X says the Council was wrong to only provide what was in the disputed EHC Plan during the appeal process. He says B missed out on 90% of their provision over three terms. He says the Council had the information it needed to show its decision was wrong in September 2021 and it should not have continued with the appeal. He believes it should have conceded earlier.
The Council has a duty to provide only what is stated in a final EHC Plan, even if that is disputed and the subject of an appeal. This means an investigation is unlikely to find fault that it did this.
The Tribunal process allows for parties to seek costs if they believe the other party has acted unreasonably in ‘defending or conducting the proceedings’. We cannot investigate issues which are part of the appeal process, including how the Council conducted those proceedings.
Final decision
We will not investigate Mr X’s complaint because we cannot investigate issues which have been subject of a Tribunal appeal.
Investigator's decision on behalf of the Ombudsman