The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s conduct during the Education, Health and Care needs assessment process and a delay issuing the final plan. The matters have already been considered by a Tribunal and we could not achieve anything more.
The complaint
Mr X complains about the Council’s conduct during the Education, Health and Care (EHC) needs assessment process and delay issuing the final EHC Plan. He says the Council’s actions caused distress and his granddaughter missed out on suitable education. He wants the Council to accept it made mistakes and compensate him for its errors.
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 cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended) The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916) 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.
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 further investigation would not lead to a different outcome.
(Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council issued a final Education, Health and Care (EHC) Plan for Mr X’s granddaughter, Y, in October 2022. This was three months outside of the statutory 20 week timescale. Mr X was unhappy with the school named in the plan and used his right of appeal to the SEND Tribunal.
Before the Tribunal hearing, the Council agreed to name Mr X’s preferred school in Y’s EHC Plan. It asked Mr X to withdraw his appeal. Mr X told the Tribunal he still wanted it to hear his case as, although he was now happy the Council had agreed to name his preferred school, he wanted the Tribunal to consider his dissatisfaction with the Council’s conduct during the EHC needs assessment process. The Tribunal did not agree to his request and closed the case.
In its complaint response to Mr X, the Council accepted it had delayed issuing his granddaughter’s EHC Plan in 2022. It apologised to him for this and for any distress caused. It said even if the plan was issued on time, it would have named the same school, so Y had not missed out on any specialist education. It explained how it had improved its service to prevent recurrence of the fault.
We cannot investigate Mr X’s complaint about Council conduct during the EHC needs assessment process. Mr X used his right of appeal to the SEND Tribunal and the Tribunal considered his dissatisfaction with the Council’s conduct as part of this process. Although it decided not to allow the case to proceed to a hearing for this, the Tribunal has considered this part of Mr X’s complaint and so we cannot investigate. This remains the case even though Mr X does not feel he has received a satisfactory remedy.
We will also not investigate Mr X’s complaint about a delay in the EHC process. The Council has accepted there was a delay and apologised to him for this. This is a suitable remedy for any distress caused and we could not achieve anything more.
Final decision
We will not investigate Mr X’s complaint because the SEND Tribunal has already considered his complaint about the Council’s conduct and we could not achieve anything more.
Investigator's decision on behalf of the Ombudsman