The Ombudsman's final decision
Summary: We cannot investigate Miss X’s complaint about the assessment process, an Education Health and Care Plan wording or the Council’s compliance with a Tribunal’s directions orders. We cannot investigate issues in a Tribunal appeal. We will not investigate a delay in issuing an amended Education Health and Care Plan as we are unlikely to achieve significantly more than the Council has offered as a remedy.
The complaint
Miss X says the Council delayed in issuing an amended Education Health and Care Plan (EHC Plan). Miss X says the Council’s delays and assessment process means she will miss her preferred setting for September 2025 onwards.
The Ombudsman’s role and powers
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 about special educational needs. We refer to it as the SEND Tribunal in this decision statement.
In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and “those ancillary matters that may fall to be decided by the Tribunal… such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
How I considered this complaint
I considered information provided by Miss X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Miss X has an EHC Plan. She is due to move to another setting in September 2025. She is over the compulsory school age. The Council accepts it should have completed the amended EHC Plan by the end of March 2025. It says it did so before the end of April. It has offered £100 for the delay.
Miss X has appealed the EHC Plan detail to the Tribunal. She says this should not have been necessary if the Council had carried out the assessment process properly and not delayed. She says the Council has not complied with the Tribunal’s direction orders. She says she believes it will not follow the EHC Plan and that it will fail to provide her with an education under s19 Education Act 1996.
Analysis 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) We cannot investigate the Council’s assessment which led to the amended EHC Plan. Any inadequacies in the EHC Plan is the injustice which flows directly from any flawed assessment. The Tribunal is the remedy for an inadequate EHC Plan.
We are unlikely to achieve more than the Council’s offer of £100 for the delay in producing the EHC Plan. It is in line with our guidance on remedies.
We will not investigate any speculative future provision failure.
Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). But this only applies to all children of compulsory school age. This does not apply to Miss X.
Final decision
We cannot investigate Miss X’s complaint about the assessment, the EHC Plan wording or the Council’s compliance with the Tribunal’s directions orders. We cannot investigate issues in a Tribunal appeal. We will not investigate the short delay in issuing the amended EHC Plan as we are unlikely to achieve significantly more than the Council has offered as a remedy.
Investigator's decision on behalf of the Ombudsman