Summary: Ms B complained about the way the Council carried out the Education, Health and Care Plan process for her daughter, A. We did not find fault with the Council.

The complaint

1. Ms B complains about the way the Council carried out the Education, Health and Care Plan (EHCP) process for her daughter, A.
2. Ms B says the Council:
• deliberately delayed the EHC assessment process and withheld documents;
• delayed issuing a final EHCP;
• delayed providing the provision set out in the EHCP; and
• named a school in the EHCP that could not meet A’s needs.

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The Ombudsman’s role and powers

3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (SEND))
4. We cannot investigate a complaint if someone has appealed to a tribunal. However, we might investigate whether there may have been a delay in the process which led to the tribunal. (Local Government Act 1974,section 26(6)(a),as amended)
5. 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)
6. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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Summary of relevant guidance

7. A child with special educational needs may have an 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.

8. If a parent asks for an EHC assessment for their child, the local authority must decide whether an assessment is necessary. It must tell the parent its decision within six weeks of receiving the request.
9. Certain decisions have a right of appeal to the Special Educational Needs and Disability Tribunal (SEND).
10. Decisions which are appealable and will usually be out of our jurisdiction include:
• The Council’s refusal to carry out an EHC assessment.
• The school or other setting named in the plan.
• The provision specified in the plan.
• The child’s special education needs.
11. The Special Educational Needs and Disability Regulations 2014 set out the timescales councils must comply with following an appeal to the Tribunal. If the Tribunal orders a council to assess a child, and the Council decides an EHCP is needed, it should issue the final plan within 14 weeks of the Tribunal’s order.

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How I considered this complaint

12. I considered all the information Ms B provided with her complaint. I made enquiries with the Council and considered its response with the relevant law and guidance.
13. Ms B and the Council had the opportunity to comment on my draft decision. I carefully considered all the comments I received.

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What I found

What happened

14. In August 2019 Ms B asked the Council to carry out an EHC needs assessment for A. In September 2019 the Council told Ms B it would not assess A.
15. Ms B appealed to the SEND tribunal. In December 2020 the tribunal heard Ms B’s appeal and told the Council to carry out the EHC needs assessment for A.
16. The Council assessed A and issued the final EHCP, naming school X, in April 2020.
17. Ms B was unhappy with the way the Council handled the EHCP process. She complained to the Council and received a response in June 2020.
18. Ms B appealed the Council’s decision to name school X. The SEND tribunal heard the appeal in January 2021. It directed the Council to name Ms B’s preferred school, school Y, in the EHCP.
19. The amended EHCP naming school Y was issued in March 2021.
20. Ms B remained unhappy with the Council’s complaint response and complained to the Ombudsman.
21. In response to our enquiries the Council said:
• A’s EHCP was issued without delay, within the statutory timeframes set out in the guidance.
• The allegation the Council withheld documents through the EHCP process was dealt with through the complaints process. It was resolved before the final EHCP was issued.

My findings

22. There are limits on our powers which mean we cannot consider all of this complaint. Where there is a right of appeal to the SEND tribunal, the Court has decided the decision, and the consequences of it, are matters which are ‘inextricably linked’ (R (on the application of ER) v the Commissioner for Local Administration, 2014). Therefore, we cannot investigate either the decision subject to the appeal or the consequences arising from the decision.
23. This means we cannot consider those periods where Ms B exercised her right of appeal.
24. My findings are summarised under the complaint headings I considered:

The Council deliberately delayed the EHC assessment process and withheld documents

25. I did not find fault with the Council. The Council initially refused Ms B’s request to assess A for an EHCP. Ms B appealed the decision and the Tribunal told the Council to assess A. Following the Tribunal’s decision the Council completed the assessment within the statutory timeframe.
26. The Council responded to Ms B’s complaint it withheld documents. It said all the relevant documents were added to the final EHCP. The issue was raised and addressed before the Tribunal hearing in January 2021. If Ms B felt the issue was unresolved she should have raised it at the Tribunal hearing. I cannot add anything further to this part of the complaint.

The Council delayed issuing a final EHCP

27. I did not find fault with the Council. After the Tribunal decision in December 2020 it assessed A and issued the final EHCP within the 14-week statutory time frame. Once the final EHCP was issued Ms B had a right of appeal.

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Final decision

28. I did not find fault with the Council.

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Parts of the complaint that I did not investigate

29. I did not investigate Ms B’s complaint the Council named a school in A’s EHCP which could not meet her needs. This is because the Ombudsman cannot investigate matters that have been appealed to a tribunal.
30. I did not investigate Ms B’s complaint A did not receive the provision set out in her EHCP. This issue and consequences are inextricably linked to the school named in the EHCP, which was subject to the appeal to tribunal.

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Investigator's decision on behalf of the Ombudsman