The Ombudsman's final decision
Summary: We will not investigate this complaint about the Education Health and Care Plan process for the complainant’s son. This is because if we were to investigate it is unlikely we would achieve a different outcome.
The complaint
The complainant, Mr X, complained the Council failed to follow the proper process when it reviewed his son’s (Y) Education Health and Care Plan (EHC Plan). Mr X says the Council took too long to reach a decision and failed to follow the proper process when it decided to cease the EHC Plan. Mr X says the Council’s failings caused anxiety, distress, and meant they incurred professional fees for support with an appeal to the First-tier Tribunal (Special Educational Needs and Disability). A representative (Mrs X) complained to the Ombudsman on Mr X’s behalf.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We investigate 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 continue an investigation if we decide: we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome, or there is no worthwhile outcome achievable by our investigation.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (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 SEND Tribunal can consider appeals against a decision to cease an EHC Plan. When a parent uses this appeal right, the Council must keep the provision in the EHCP in place until the appeal is finished.
We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the tribunal at any stage of the appeal, or which the tribunal has considered on its own initiative, or which could have been a part of the tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207) Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
In its response to Mr X’s complaint the Council accepted it took too long to issue a decision following his son’s annual review at the end of January 2023. The Council should have issued a decision within four weeks. The Council did not tell Mr X until the middle of June that it planned to cease Y’s EHC Plan. The Council only did this verbally with the formal decision and appeal rights sent at the end of the academic year. The Council also accepted it had wrongly sent a letter in the middle of May saying it had agreed to maintain the EHC Plan. In its complaint response the Council said it had rescinded the decision to cease the EHC Plan and Y could therefore remain at his college for another year. It said it could not reimburse the fees Mr X incurred as part of his appeal to the SEND Tribunal. This was because it was Mr X’s choice to pay for representation. But the Council did offer £300 for the time and trouble caused.
In deciding whether to investigate a complaint we consider various tests. These include whether there is enough evidence of fault by the Council, but also the injustice caused to the complainant. We need to consider any remedy already offered and if we could achieve anything more.
The Council was clearly at fault because it should have advised Mr X of its plan to cease Y’s EHC Plan within four weeks of the annual review. It did not do this verbally until the middle of June and formally by the end of the academic year. The Council was also at fault when it wrote to Mr X in the middle of May and said it would be continuing with the EHC Plan when this was not its intention. There will have been uncertainty to Mr X from the Council’s delay and its confusing messages. The Council’s decision to cease the EHC Plan came later than it should have done. I understand Mr X’s frustrations.
The Council has, however, offered a payment of £300 in recognition of its fault. On balance, if we were to investigate Mr X’s complaint, it is unlikely we would offer a higher remedy. We look at each case on its merits, but the remedy offered is broadly in line with what we would recommend for the delay involved. This decision takes into account there was no loss of provision for Y.
Mr X also appealed to the SEND Tribunal. When an appeal has been made, the Ombudsman has no jurisdiction to consider related matters from the point at which the appeal rights were engaged to the point at which the SEND Tribunal issues its decision, or the appeal was concluded. The Courts have held we cannot investigate any matter which is closely linked to the matter appealed or which the SEND Tribunal could decide. This includes the decision to cease the EHC Plan and costs incurred during the appeal process.
An investigation would therefore be unlikely to lead to a significantly different outcome and so we will not investigate.
Final decision
We will not investigate Mr X’s complaint because it is unlikely an investigation would lead to a different outcome.
Investigator's decision on behalf of the Ombudsman