Summary: We cannot investigate Miss X’s complaint about the adequacy of an Education Health and Care Plan as the Tribunal is considering this. We will not investigate whether any Council delays caused Miss X an injustice until the Tribunal finishes and the final needed provision is known.

The complaint

1. The complainant, whom I shall call Miss X, says the Council failed to provide a satisfactory Education Health and Care Plan (EHC Plan) and failed to ensure she is provided with a suitable education.

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The Ombudsman’s role and powers

2. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), 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:
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify the cost of our involvement. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I considered the information Miss X provided with her complaint. Miss X had the opportunity to comment on a draft version of this decision.

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What I found

6. Miss X has an EHC Plan. 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 the Tribunal can do this. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
7. The Council held Miss X’s EHC Plan annual review in January 2020. Miss X says it then delayed in producing an amended EHC Plan and in particular that it did not name a suitable placement to start in September 2020. She says she has not been provided with the education she should have had as a result and the uncertainty affected her health.
8. Miss X appealed the EHC Plan to SEND. It is still considering the case.

Analysis

9. We cannot consider the same issues the Tribunal is. This means we cannot investigate if the EHC Plan is worded appropriately or if it names the right setting for Miss X’s education.
10. We could not work out any injustice to Miss X caused by delays in providing the EHC Plan until the Tribunal’s decision is known. This is because we cannot know what Miss X has missed until we know what she should have received.

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Final decision

11. We will not and cannot investigate this complaint. This is because the Tribunal is still considering the case.

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Investigator's decision on behalf of the Ombudsman