Summary: The Ombudsman will not investigate whether an Education Health and Care Plan meets Mrs X’s child’s needs as a Tribunal is deciding this. We will not investigate the alleged Council fault before the Tribunal appeal, as it is not possible to find out what has been missed until the Tribunal decision is known.

The complaint

1. The complainant, whom I shall call Mrs X, says the Council failed to provide her child with their education as set out in their Education Health and Care Plan (EHC Plan). Mrs X also says it delayed in amending an EHC Plan following an annual review.

Back to top

The Ombudsman’s role and powers

2. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word 'fault' to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

Back to top

How I considered this complaint

5. I considered the information Mrs X provided with her complaint and the Council’s replies which it provided. I considered Mrs X’s comments on this draft version of this decision.

Back to top

What I found

6. Mrs X has a child, D, who has special educational needs. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
7. D has an EHC Plan. In March 2018, the Council carried out its annual review of D’s EHC Plan. D was due to move educational setting in September 2018 to move to the next stage of their education.
8. The Council is responsible for putting in place the arrangements named in the EHC plan. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
9. Mrs X says the Council unreasonably delayed in amending D’s EHC Plan following the annual review. The Council sent Mrs X the final version in December 2018. Mrs X says meanwhile D has not received a satisfactory education. Mrs X has appealed the EHC Plan wording to the Tribunal.
10. The Council accepts it delayed. It says it took steps to provide the education D needs.

Analysis

11. We cannot investigate whether the EHC Plan is worded in a way which should meet D’s needs. This is because the Tribunal is considering this.
12. It is not practical at this time, to investigate the delays before the Council issued the EHC Plan in December. This is because it is not possible to work out the injustice to D, the education they did not receive, until we know what they should have received. We will not know this until the Tribunal has decided what the EHC Plan should say.

Back to top

Final decision

13. The Ombudsman will not investigate this complaint. This is because we cannot investigate whether the EHC Plan is worded adequately. The Tribunal is considering this. It is not possible to know the injustice to D caused by any Council fault until the Tribunal’s decision is known.

Back to top

Investigator's decision on behalf of the Ombudsman