Summary: We will not investigate Ms X’s complaint the Council has failed to provide D with an education. We cannot investigate the education a school provided or issues which the Tribunal is covering.

The complaint

1. The complainant, whom I shall call Ms X, says the Council has failed to provide her child, D, with an satisfactory education since March 2020.

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The Ombudsman’s role and powers

2. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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.
5. The courts established that when someone lodges an appeal to a SEND Tribunal, we cannot investigate any matter which is ‘inextricably linked’. This means if a person disagrees with the placement named in an EHC Plan, we cannot get a remedy for the lack of education from after the appeal right started, if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
6. 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)

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How I considered this complaint

7. I considered information provided by Ms X.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Children who have extra educational needs can have an Education Health and Care Plan (EHC Plan).
10. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
11. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. Parents must consider mediation before deciding to appeal. An appeal right starts once the Council issues its decision not to assess, issue or amend a plan. Or when it issues a final EHC Plan.
12. Ms X says D has not attended school since March 2020. She says she applied for an EHC Plan assessment in September 2020. She says the Council issued the final EHC Plan in early November 2021. She is not happy with it. She does not believe it will meet D’s needs. This includes the setting in which D should receive their education. Ms X has appealed to SEND.
13. We cannot investigate the education provided by the school D attended prior to March 2020.
14. We cannot investigate the education and support D should have received from the EHC Plan issue in November 2021 until the Tribunal’s decision.
15. We may be able to investigate delays in the EHC Plan processing between September 2020 until the EHC Plan issue in November 2021, and other administrative faults which are separable from the Tribunal. But we would not be able to work out the full injustice caused to D and Ms X until the Tribunal’s decision is known.

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Final decision

16. We will not investigate Ms X’s complaint because we cannot investigate the same issues the Tribunal is covering. And it is not suitable to investigate separable issues until the Tribunal finishes.

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Investigator's decision on behalf of the Ombudsman