Summary: Mrs C complains about the review of her son’s Education Health and Care (EHC) plan. She disagrees with the school the Council named on the final EHC plan. We stopped investigating the complaint because it is reasonable for Mrs C to use her right of appeal to the Special Educational Needs and Disability Tribunal to challenge the Council’s decision.

The complaint

1. Mrs C complains about how Liverpool City Council (the Council) managed the review of her son’s (D’s) Education Health and Care (EHC) plan, after she moved to the area in February 2019 Mrs C complains that:
1. The Educational Psychologist’s assessment was inadequate, and it failed to carry out a second assessment
2. The school named on D’s EHC plan does not meet his needs.
2. Mrs C says D has missed out on appropriate education because of the Council’s fault.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I considered Mrs C’s complaint to us, the Council’s response to the complaint and documents set out in the next section of this statement. I discussed the complaint with Mrs C.
7. Mrs C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

8. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only SEND can do this.

9. Where a child or young person moves to another local authority, the ‘old’ authority must transfer the EHC plan to the ‘new’ authority. The old authority must transfer the EHC plan to the new authority on the day of the move or within 15 working days beginning with the day on which it became aware.
10. The requirement for the child to attend the educational institution specified in the EHC Plan continues after the transfer. However, where attendance would be impractical, the new authority must temporarily place the child at an appropriate educational institution other than that specified – for example, where the distance between the child or young person’s new home and the educational institution would be too great – until the EHC plan is formally amended.

What happened

11. Mrs C and D lived in a different area where D had an EHC plan and attended a small mainstream school. The family moved to the Council’s area in February 2019. The Council says it received D’s EHC plan documents from the previous local authority in March.
12. Mrs C informed the Council of her preferred school for D (School A).
13. The Council arranged for D to be assessed by an Educational Psychologist. The assessment took place at D’s home and the report was issued to the Council in December 2019. It concluded that D had a moderate learning disability.
14. The Council consulted with schools including School A. Two mainstream schools told the Council they could meet his needs, this included School B.
15. The Council told Mrs C that it planned to name School B on D’s EHC plan.
16. In September 2020 Mrs C complained. She said School B was unsuitable and that School A should be named on D’s EHC plan. Mrs C said she disagreed D had a moderate learning disability, and that previous assessments had concluded that his disability was severe. She said the Educational Psychologist’s assessment should have been carried out at school rather than her home and should be redone.
17. The Council disagreed. It said a new assessment was not necessary as it wouldn’t reach a different conclusion. The Council said School A was not suitable as D did not meet the eligibility criteria.
18. The Council issued an amended final EHC plan in November 2020 and sent a copy to Mrs C with a letter explaining her right of appeal to SEND, by email. Mrs C said she had not received the final EHC plan. I am satisfied the Council emailed the plan to an email address Mrs C had previously used to communicate with Mrs C.

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Final decision

19. Mrs C’s complaint is about the Council naming School D as education provision and about the description of D’s SEN. There may also be potential complaints about the provision for D up until the Council issued the amended EHC plan. We cannot challenge the contents of an EHC plan when these can be appealed to the SEND tribunal. And we cannot properly assess the extent of any injustice to D until the outcome of an appeal to the tribunal is known. So I have stopped investigating Mrs C’s complaints. She can come back to us and ask for an investigation once she has the decision from the SEND tribunal.

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Investigator's decision on behalf of the Ombudsman