Summary: Mrs X complains about the Council’s handling of her son’s Education and Health Care Plans and its refusal to investigate her complaint, causing stress and financial loss. The Ombudsman cannot consider any complaints related to Mrs X’s appeal to the SEN Tribunal. The Ombudsman finds fault in the Council’s refusal to investigate Mrs X’s complaint but finds this did not cause significant injustice.

The complaint

1. Mrs X complains about the Council’s handling of her son’s Education and Health Care Plans (“EHCP”) and its refusal to investigate her complaint. Mrs X says her and her family have suffered stress and financial loss.

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The Ombudsman’s role and powers

2. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
6. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

7. I spoke to Mrs X and I reviewed documents provided by Mrs X and the Council. I gave Mrs X and the Council the chance to comment on a draft of this decision and I considered the comments provided.

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What I found

8. The Ombudsman has no jurisdiction where a parent has appealed to the SEN Tribunal from the date the SEN appeal right arises until the appeal is completed.
9. Any loss of education or fault during this period which is a consequence of the decision being appealed is out of jurisdiction, even if this means the injustice will not be remedied.
10. The Court of Appeal has confirmed the Ombudsman cannot consider a complaint when the complainant has pursued an alternative remedy, even if it does not provide a complete remedy for the injustice claimed. (R v Commission for Local Administration, ex parte Field [1999] EWHC 754 (Admin)).
11. If someone has lodged an appeal to a Tribunal the Ombudsman cannot investigate any matter which is inextricably linked to the matters appealed. (Local Government Act 1974, section 26(6)(a)); R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

Time limits

12. The time limits for compliance with a Tribunal Order are contained in Regulation 44 of the Special Educational Needs and Disability Regulations 2014.
13. Where the SEND Tribunal asks the council to carry out an assessment or reassessment, the council must notify the parents it will do so within two weeks. Following the assessment, if the council decides to issue an EHCP they must issue the final EHCP within 14 weeks of the SEND Tribunal order.

EHCP process

14. When a child’s parent suggests changes to a draft EHCP that the council agrees, the council should amend and issue a final EHCP as quickly as possible. If the council wishes to make other changes it must re-issue the draft EHCP to the parent first.

What happened

15. Mrs X’s son Y attended a mainstream school. However, following time in hospital, the hospital told Mrs X to ask the Council for home tuition until a specialist placement could be found. Mrs X says she therefore decided to keep Y at home and arrange home tuition.
16. In February 2017 Mrs X asked the Council to assess Y. In March the Council refused and in May Mrs X appealed to the SEN Tribunal.
17. During the tribunal process Mrs X paid privately for reports from a Speech and Language Therapist (“SALT”), Occupational Therapist (“OT”) and Educational Psychologist (“EP”). The Council told her it would put Y on the NHS waiting list for assessments but these may not take place during the statutory time limit.
18. On 5 September 2017 the Tribunal ordered the Council to carry out an EHC assessment.
19. Mrs X says the Council failed to give notice of the assessment as it should have done.
20. Mrs X says the Council asked to use the reports she had commissioned as part of its assessment. But wanted its own OT and SALT to review the information and advise on local provision.
21. On 19 December the Council issued a final EHCP. I note the Council issued this 15 weeks after the Tribunal order.
22. In January 2018 Mrs X appealed the contents of the Final EHCP under sections B needs; F provision and I placement.
23. In August the Tribunal ordered the Council to name the placement preferred by Mrs X.
24. On 19 September 2018 Y began “full time appropriate education with the required therapies”.
25. In October the Council issued a final EHCP in line with the Tribunal’s order.
26. Mrs X complained to the Council on 25 March 2019. She explained her complaints related to the process from the date she first asked for an EHCP on 14 February 2017 until the Council finalised this on 3 October 2018. She set out 20 numbered complaints about the Council, summarised below:

1. Refusal to assess Y
2. Delay in finalising the EHCP following the September 2017 tribunal hearing
3. Placing Y on the NHS waiting list and attempting to restrict provision
4. Delay in finalising EHCP in 2017 and inaccurate response to Mrs X about delay
5. Inaccurate report of Council EP
6. Failure to issue another draft Plan after amendments in 2017
7. Dispute over the layout and content of the EHCP issued in 2017
8. Dispute over the content of the EHCP issued in 2017
9. Concerns over the Council’s response to the Tribunal
10. Sending a draft Plan to schools before Y’s parents
11. Dispute over suitability of school Council consulted
12. Dispute over suitability of school Council consulted
13. Dispute over suitability of school Council consulted
14. Inaccurate information in Council request to Tribunal for extension
15. Dispute over Council’s request for case management hearing
16. Refusing to accept accountability and liability for harm to Y as raised during the Tribunal process
17. Providing inaccurate information to the Tribunal
18. Unreasonable conduct during the Tribunal process
19. Dispute over Council’s knowledge of the Tribunal process
20. Failure to take action during the Tribunal process

27. On 5 April 2019 the Council told Mrs X it would not investigate her complaint as she should have raised those issues during the Tribunal process. It referred her to the Ombudsman.
28. Mrs X contacted the Council again on 26 April disagreeing with its decision not to investigate. She said the Tribunal only considered the merits of a decision properly taken, whereas the Ombudsman could look at all the decisions not properly taken.
29. In comments on the draft decision, the Council said it was difficult to comply with the statutory timetable as it was difficult to engage with Mrs X.

Findings

30. It is not within my jurisdiction to consider Mrs X’s complaints where she had the right to appeal to the Tribunal and did then appeal. At each stage the Council told Mrs X she had the right to appeal and Mrs X did then appeal. The Ombudsman therefore cannot consider or investigate these matters. We also cannot look at any injustice that may have occurred during the appeal process where this is inextricably linked to the appeal.
31. The Tribunal can consider the merits of all council decisions whereas the Ombudsman is limited in that it cannot question the merits of decisions where the proper decision making process has been followed. Mrs X considers there are some decisions the Tribunal will not have considered and which the Ombudsman can now investigate. However, the Ombudsman cannot investigate any matters that have been to Tribunal.
32. I cannot investigate the Council’s refusal to assess Y, because Mrs X used her right of appeal.
33. The Council failed to tell Mrs X it would assess Y within two weeks of the 2017 Tribunal hearing. It also issued the final EHCP one week later than it should have done. This is technically fault. However, I find this did not cause significant injustice.
34. A council can place a child on NHS waiting lists for assessments and this may cause delay. If there is delay a person may complain. However, in this case there was no delay because Mrs X decide to commission assessments privately. I therefore find no fault by the Council. (I also note that I cannot consider a remedy for any costs incurred by Mrs X during the Tribunal process.)
35. The Council wanted its own SALT and OT to review the parental commissioned reports. There is no reason why the Council should not take such action and no evidence this caused injustice. The Council explained this was to get advice on local provision. However, there is no evidence the Council intended to restrict provision to that available locally or that this happened. I therefore find no fault causing injustice.
36. I note the Council told Mrs X it was waiting on feedback from professionals on the reports she commissioned, although it had already received some feedback. While technically the Council had already received a response I note it asked further questions. It is clear the Council had not received all the feedback it wanted. I therefore find no fault.
37. I note Mrs X considered the Council’s EP gave an opinion on a matter for which she was unqualified and failed to include a statement of truth in her report. However, I cannot say the opinion of the EP is wrong and I find the lack of statement does not amount to fault.
38. The Council issued a final EHCP with an additional finding. However, it should not have done so before first sending Mrs X a further draft. This amounts to fault. However, I find this did not cause significant injustice as Mrs X appealed the contents of the Plan in any event.
39. I cannot consider Mrs X’s complaints about the layout and content of the EHCP as she had the right to appeal and did appeal.
40. I cannot consider any matters linked to the Tribunal appeal or any matters arising as part of the Tribunal process, including disputes over the Council’s submissions to the Tribunal.
41. The process set out in the SEND Code of Practice says a council should send a draft plan to parents and allow 15 days to comment. The council should also send a draft plan to schools and allow 15 days for a response. The Code does not say the council should await return of the parent’s comments before sending the draft to schools. Rather the process says the council should amend the plan following consultation with parents, after it has been sent to schools. I therefore find no fault in the Council sending the draft to schools before Mrs X made comments.
42. I cannot consider Mrs X’s complaints regarding the Council’s consultation with schools because this is linked to her appeal over the placement named in the EHCP.
43. The Council refused to consider Mrs X’s complaint as it said she should have raised all matters to the Tribunal. However, some complaints concerned matters outside the Tribunal. I therefore consider the Council’s refusal amounts to fault. However, I find this did not cause Mrs X significant injustice, given my own findings on the complaint.

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Final decision

44. I have found the Council did not technically follow all statutory requirements in its handling of Y’s EHCP and it was at fault in its refusal to investigate Mrs X’s complaint. However, I find this did not cause any significant injustice.

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Investigator's decision on behalf of the Ombudsman