The Ombudsman's final decision
Summary: We cannot investigate Ms X’s complaint about the Council’s failure to consult with her about her child, Y’s, draft Education, Health and Care (EHC) Plan or its delivery of the provision. This is because Ms X has appealed the content of the EHC Plan to the SEND Tribunal, and the law says we cannot investigate.
The complaint
Ms X complained: the Council finalised her child, Y’s, Education, Health and Care (EHC) Plan without consulting her about its contents; the Council failed to find her child, Y, a school placement or the deliver the content of their EHC Plan; and about the Council’s poor communication.
Ms X says the matter has caused Y to miss out on education and affected their mental health. Ms X says the matter has also caused her distress and frustration.
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: 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) 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 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 courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).
This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
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 November 2023 the Council sent Ms X a draft copy of Y’s EHC Plan. It told Ms X she could make comments within 15 days. Ms X says she asked the Council for a meeting to discuss the Plan.
The Council finalised Y’s EHC Plan in December 2023. It named a type of placement (mainstream) but not a specific school.
Ms X then complained to the Council. She said it had finalised Y’s EHC Plan without consulting her. Ms X also complained the Council’s communication in general was poor.
The Council responded and told Ms X it had not received any communication from her within the consultation timeframe. It accepted its communication with Ms X had been delayed at times and it apologised.
Ms X complained again and told the Council she had requested the meeting before the deadline was due. Ms X reiterated that the Council’s communication was poor.
The Council responded and told Ms X it had sent Y’s final EHC Plan 15 days after the consultation letter was sent. It told Ms X it was unable to find a record of her request for a meeting before the final Plan was sent. The Council explained it had attempted to contact Ms X, but she was, at times, unavailable. It did not uphold Ms X’s complaint.
Ms X appealed the content of Y’s Plan to the SEND Tribunal. Ms X said the content of the Plan did not reflect Y’s needs and appealed the provision within the Plan, as well as the type of school in section I. Ms X wants Y to be educated other than at school.
Analysis Ms X said the Council failed to consult her about the content of Y’s draft EHC Plan before it sent a final EHC Plan. However, because Ms X has appealed to the SEND Tribunal about the content of the Plan, and Ms X’s claimed injustice (that the Plan is inaccurate) is the same as the matter taken to the Tribunal, the law says we cannot investigate this complaint.
Ms X also said Y has not received the provision within their EHC Plan. However, because Ms X has appealed to the SEND Tribunal about the type of placement (education other than at school as opposed to mainstream), as well as significant key portions of the provision in the current EHC Plan, we cannot investigate this complaint. This is because the matters under appeal are too closely linked to Ms X’s disagreement about the type of school named in the EHC Plan.
Ms X complained about the Council’s communication. The Council already apologised for poor communication in its stage one response. We will not investigate this complaint because an investigation by the Ombudsman is unlikely to achieve a different outcome.
Final decision
We cannot investigate Ms X’s complaint because she has used her right of appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman