Summary: The Ombudsman cannot investigate Ms X’s complaint about an Education Health and Care Plan the Council produced for her child. She appealed to the Tribunal and we cannot investigate issues appealed to the Tribunal.

The complaint

1. The complainant, whom I shall call Ms X, says the Council delayed in producing an amended Education Health and Care Plan (EHC Plan) for her child, Y, and produced an inadequate EHC Plan. She says this forced her to pay legal costs.

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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)

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How I considered this complaint

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

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What I found

Background

5. Y has an EHC Plan. The Council carried out its annual review in July 2019. It then issued an amendment notice and a final amended EHC Plan in early August 2019. Ms X says this process took too long. The Council carried out this whole process within the timescale the EHC Plan Code sets out.
6. Ms X believed the EHC Plan did not meet Y’s needs. She appealed to the tribunal, SEND.
7. The SEND process length worried Ms X and she believed it would mean Y would:
• not get the education support they needed,
• may have been excluded because the EHC Plan did not meet Y’s needs and
• she might be at risk of covering school costs.
8. Ms X decided to employ a solicitor to write to the Council to get the EHC Plan amended quicker than waiting for the Tribunal final hearing. Ms X says they sent a judicial review pre action protocol letter. The Council agreed to the EHC Plan amendments she wanted.
9. Ms X says she had to pay £750 legal costs. She says if the Council had written the EHC Plan properly she would not have had to incur those costs.

Analysis

10. We cannot investigate whether the EHC Plan the Council issued in August 2019 was acceptable. This is because Ms X appealed to the Tribunal. We cannot investigate the appeal process.
11. Parliament set up the SEND free appeal process for parents to use if they disagreed with an EHC Plan’s wording. It does not need parents to be legally represented. The Tribunal’s process allows for parties to apply for costs against the other party should they feel the other party acted unreasonably.

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Final decision

12. The Ombudsman cannot investigate this complaint because Ms X appealed to SEND.

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Investigator's decision on behalf of the Ombudsman