Summary: The Ombudsman has discontinued his investigation of this complaint, about the Council’s delay in issuing an Education, Health and Care plan. This is because he cannot provide the outcome the complainant seeks.

The complaint

1. The complainant, to whom I will refer as Mr G, says the Council missed the statutory deadline for issuing an Education, Health and Care (EHC) plan for his son, when he was due to transfer from nursery to primary school. This in turn meant Mr G’s subsequent appeal to the Tribunal was also delayed. Mr G complains the Council has not backdated costs he incurred for arranging private therapy for his son, which the Tribunal has since ordered the Council to provide.

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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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely further investigation will lead to a different outcome, or we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), 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’))

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How I considered this complaint

5. I reviewed the Ombudsman’s findings on Mr G’s previous, related complaint, and the Tribunal’s decision on his appeal.
6. I also shared a draft copy of this decision with each party for their comments.

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What I found

7. Mr G’s son, to whom I will refer as P, is autistic.
8. In 2019, the Ombudsman published a report on a complaint made by Mr G. The complaint was about several different aspects of the Council’s handling of P’s case, including a delay in issuing his EHC plan for his transfer from nursery to primary school in September 2017.
9. The Council told us it had issued an amended EHC plan for P by the statutory deadline of 15 February 2017. This plan differed only from the previous one by the inclusion of the primary school that P was to attend. Between March and June, the Council then undertook a full review of the plan, to include the support P would receive at primary school, issuing a new amended plan on 29 June.
10. On the balance of probabilities, the Ombudsman found the Council had not issued any plan by the statutory deadline. The contents of an EHC plan carry an appeal right to the SEND Tribunal, and, given the lack of support detailed in the plan the Council said it had issued in February, the Ombudsman considered Mr G would have used his appeal right then if he had received this.
11. As it was, Mr G still did not agree with the contents of the plan issued in June, and used his appeal right at that point. This meant there was a four-month delay in the start of the appeal process, because of the Council’s fault.
12. At the time the Ombudsman issued his report, Mr G’s appeal was still ongoing. This was because, after receiving the First Tier Tribunal’s determination, he appealed this to the Upper Tribunal. The Upper Tribunal upheld Mr G’s appeal and remitted it back to the First Tier Tribunal for further consideration.
13. The eventual outcome of Mr G’s appeal was that it was partially upheld. In doing so, the Tribunal ordered an uplift in the specialist provision for P. Mr G had been funding this increased provision privately in the meantime, which he considers an injustice, for which the Council should provide a financial remedy.

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Analysis

14. As described at paragraph 3, the Ombudsman has no legal jurisdiction to investigate any matter which has been subject to appeal to a tribunal. The courts have found this restriction extends to secondary matters, related to the appeal, even when they cannot be addressed by the tribunal itself.
15. In Mr G’s case, this means the Ombudsman cannot investigate the dispute over the level of provision for P; nor remedy any injustice arising from the difference in provision originally agreed by the Council, and that eventually ordered by the Tribunal.
16. The only matter here which is not outside of the Ombudsman’s jurisdiction, therefore, is the delay in the start of the appeal process, caused by the Council’s failure to issue the EHC plan by the statutory deadline, and its consequences.
17. Given there was an approximately four-month delay before Mr G was able to submit his appeal, it logically follows the eventual outcome of the appeal would have come approximately four months earlier, had the Council not been at fault. It is arguable, therefore, that what Mr G paid for the additional provision over the initial four months is an injustice. And, as it preceded his appeal, this period is not caught by the restriction on the Ombudsman’s jurisdiction.
18. However, I do not consider it is possible to draw a sufficiently strong evidentiary link here. The appeal process was exceptionally drawn-out, taking some 20 months in total, and the determination shows much of the evidence to support Mr G’s case for further provision was gathered during the lifetime of the appeal. In addition, the reason this evidence was available is precisely because Mr G was paying for the additional provision during that time.
19. So, even if the Council had issued the EHC plan on time, I could not say this means Mr G would not have had to pay for the additional provision for an extended period. The delay in issuing the plan is not so directly linked to Mr G’s costs the Ombudsman could say they were an injustice arising from this fault.
20. In such circumstances, the Ombudsman will often instead look to provide a nominal remedy. This seeks to reflect a person’s general distress, time and trouble in experiencing delays or other mishandling of their case by the authority in question, where it is not possible to meaningfully quantify their injustice any other way.
21. However, in response to the Ombudsman’s report on Mr G’s original complaint, the Council agreed to provide him with a remedy for his distress, and for his time and trouble. I cannot, therefore, ask the Council to duplicate this remedy here.
22. Taking these points together, I do not consider there is anything significant to be gained by further investigation by the Ombudsman here. I therefore consider it appropriate to discontinue my investigation of Mr G’s complaint.

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Final decision

23. I have discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman