Summary: The Ombudsman cannot investigate Mrs X’s complaint that the Council ended her son’s Education, Health and Care Plan. This is because Mrs X has appealed to the Special Educational Needs and Disability Tribunal. Mrs X also complains the Council responded to her Subject Access Request poorly. The Ombudsman will not consider this complaint further as it is unlikely investigation would achieve anything more for Mrs X.

The complaint

1. Mrs X complained on behalf of her son, Y, and herself. She complained the Council ended Y’s Education, Health and Care Plan (EHCP). She says this was a flawed decision and the Council made it without a suitable transition plan in place. Mrs X also complained the Council responded to her Subject Access Request (SAR) poorly. She says these issues have caused her and Y significant stress and have negatively affected their health.

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The Ombudsman’s role and powers

2. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended).
3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)).
4. 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
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended)

5. We may decide not to start or continue with an investigation if we are satisfied with the actions a council has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)

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How I considered this complaint

6. I have considered all the information Mrs X provided. I have also considered the Council’s response. I have written to Mrs X with my draft decision and given her an opportunity to comment.

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What I found

Cessation of the Education, Health and Care Plan

7. Y is a young adult with autism. He has an EHCP which includes provision of Speech and Language Therapy and placement at a specialist college.
8. In June 2019 the Council ended Y’s EHCP. Mrs X says the Council decided to end the plan because Y couldn’t make further progress. She says the decision was flawed and did not consider relevant evidence.
9. Mrs X has appealed the decision to end the plan at SEND.
10. As Mrs X has exercised her right to appeal to SEND the Ombudsman has no power to investigate this matter.

Subject Access Request

11. Following the Council’s decision to end Y’s EHCP, Mrs X made a SAR of the Council.
12. In October 2019 Mrs X complained the Council had failed to respond properly to her SAR. She said the information was incomplete, delayed and incorrect. Mrs X continued to correspond with the Council to seek the outstanding information and clarify details.
13. The Council responded to Mrs X’s complaint in December. It accepted it had initially failed to send Mrs X all the information she asked for and was entitled to. The Council said this was because of a fault in how it collated information. To remedy the fault, the Council apologised and said it had met with relevant officers to highlight the fault. It also said it had issued guidance to staff to prevent the issue recurring. The Council confirmed Mrs X had later received the outstanding information.
14. I consider the Council’s actions were a reasonable and proportionate remedy to the injustice caused by it failing to send a complete response. It is unlikely investigation by the Ombudsman would achieve anything further for Mrs X.
15. The Council disputed Mrs X’s view the SAR was late. If Mrs X has outstanding concerns about the completeness and timeliness of the SAR, it is open to her to contact the Information Commissioner’s Office. The ICO is in a better position to look at complaints about SAR’s.

The Council said Mrs X’s concerns about the accuracy of the information would be best resolved at the Tribunal. As the concerns Mrs X raised relate to the decision to end Y’s EHCP, I consider this is a reasonable proposition.

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Final decision

16. The Ombudsman cannot investigate Mrs X’s complaint about the Council ending her son’s EHCP. This is because Mrs X has appealed to SEND. We will not investigate her complaint about the Council’s response to her SAR because it is unlikely investigation would achieve anything further.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman