Summary: Ms B complains about the way the Council managed her son’s Education Health and Care (EHC) Plan. Ms B has appealed to the Special Education Needs and Disability tribunal. The Ombudsman cannot assess the impact of any delay or recommend a remedy until the case has been decided by the tribunal. Therefore, the investigation has been discontinued. Ms B's complaint can be re-opened when the outcome of the tribunal is known.

The complaint

1. The complainant, whom I shall refer to as Ms B, complains on behalf of her son, Mr D. Ms B says that after a review was carried out of Mr D’s Education and Health Care (EHC) Plan, the Council cut his provision by half and its financial support for his education expenses was withdrawn. The Council then delayed issuing a final EHC Plan delaying Mr D’s appeal rights. Ms B says this has negatively impacted Mr D’s education and has caused distress to the family.

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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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (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. 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)

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How I considered this complaint

6. I considered:
• Mrs B’s complaint and the information she provided.
• documents supplied by the Council.
• relevant legislation and guidelines.
7. I also sent a draft version of this document to both parties and invited their comments.

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What I found

8. Mr D is a young adult, who has profound autism and learning difficulties. He is therefore subject to an Education Health and Care (EHC) Plan.
9. On 3 June 2019, an annual review of Mr D’s EHC Plan took place at his college.
10. In August, Ms B was informed that the Council would be reducing the funding it provides to meet Mr D’s SEN provision would be reduced by 50%. Ms B was also told financial support for Mr D’s education expenses would also be withdrawn.
11. In September, Ms B complained to the Council about the changes to the financial package of support, and that it had not finalised the plan. The Council told Ms B that it had not receive a copy of the plan, but that it would be contacting the college so that a final plan could be completed.
12. Ms B appealed the Council’s response at Stage 2 of its complaint’s procedure. In December, the Council responded apologising that a final EHC Plan had still not been issued and accepting there had been a failure in its processes. The Council therefore offered payments totalling £400 to remedy the delay to the EHC Plan and the time and trouble Ms B had been to pursue her complaint. Ms B subsequently complained to the Ombudsman.
13. In February 2020, the Council issued Mr D’s final EHC Plan. The Council has subsequently informed the Ombudsman that Ms B has appealed some of the contents of the plan, including the provision, to SEND.

Analysis

14. When investigating complaints about alternative provision we would look at the education and any SEN provision that should have been provided by the school. If we find fault, we look at what injustice that fault caused the child and family. We may also investigate other elements, such as delays issuing the EHCP.
15. We have published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a council. Our primary aim is to put people back in the position they would have been in if fault by the Council had not occurred. Where this is not possible, we may recommend the Council makes a financial payment.
16. The Ombudsman cannot currently assess the impact of any fault on the child and family until it is known what SEN support the child should have received. We will not know this until the Tribunal has finished. It is not right for us to investigate this complaint until then.

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Final decision

17. The Ombudsman cannot assess the impact of any delay or recommend a remedy until the case has been decided by the tribunal. Therefore, the investigation has been discontinued. Ms B’s complaint can be re-opened when the outcome of the SEND tribunal is known

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Investigator's decision on behalf of the Ombudsman