Summary: The Ombudsman will not investigate Miss Q’s complaint about the Council’s alleged delay in naming School B in her son’s Education, Health and Care Plan. Nor will we investigate the Council’s alleged failure to ensure Miss Q’s son received an education between January and September 2019. This is because Miss Q appealed to SEND, so much of the complaint is outside our jurisdiction.

The complaint

1. The complainant, who I have called Miss Q, complained that Cheshire West and Chester Council took too long to name School B in her son’s Education, Health and Care Plan. She said the Council also failed to provide her son with education between January and September 2019.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. Case law has established that we cannot investigate any loss of education or other fault by a council from the date the right of appeal to SEND arises until the date the appeal is completed. R (on the application of ER) v The Commissioner for Local Administration (2014)
6. We may decide not to start or continue with an investigation if we believe the injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

7. I considered the information Miss Q provided. I considered the information the Council provided. I invited Miss Q to comment on a draft of this decision.

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What I found

Background

8. Among other things, SEND may consider appeals about

• a council’s refusal to amend an EHC Plan (EHC Plan) following a review or reassessment;
• the school named in an EHC Plan.

What happened

9. Miss Q’s son, M, has an Education, Health and Care Plan (EHC Plan). M attended School A and this was named in his EHC Plan.
10. In November 2018 School A reviewed M’s EHC Plan. It said it could not meet his needs. Miss Q asked the Council to name School B in the EHC Plan as M had been a pupil there previously and had done well.
11. In December 2018 M stopped attending School A as Miss Q was concerned about how it was affecting him.
12. In January 2019 the Council refused to name School B in M’s EHC Plan. Miss Q asked for mediation but, when the Council said this would not help, she appealed to SEND.
13. In June 2019 the Council agreed to name School B in M’s EHC Plan. Miss Q withdrew her appeal to SEND on 4 July 2019. M started at School B in September 2019.
14. Miss Q believes the Council took too long to name School B on M’s EHC Plan. She also believes the Council’s delay meant M was without any education between January and September 2019

Analysis

15. We will not investigate this complaint.
16. Miss Q believes the Council took too long to name School B in M’s EHC Plan and he did not receive education because of this. However, when the Council told Miss Q in January 2019 it would not name School B in the EHC Plan she had a right of appeal to SEND. She later used that right. Therefore, we cannot investigate any failure to provide education or other fault by the Council until Miss Q withdrew her appeal. I explained the reason for this in paragraph 5.
17. There is no expectation that a council should provide education during the school summer holiday. But we could, perhaps, consider what happened between 4 July 2019 (when Miss Q withdrew her appeal) and the end of the school year later that month. However, the injustice M and Miss Q may have suffered because of any lost education during this period is not enough on its own to justify our involvement.

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Final decision

18. We will not investigate Miss Q’s complaint. This is because she has appealed to SEND.

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Investigator's decision on behalf of the Ombudsman