Summary: We will not investigate Ms X’s complaint about the failure to provide a suitable education to her child as the Tribunal is currently considering what this education should be. It is not possible to assess the level of injustice of any failed support until the Tribunal decision is known.

The complaint

1. The complainant, whom I shall call Ms X, says the Council has failed to provide the educational support her child, B’s, needs.

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The Ombudsman’s role and powers

2. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
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 Ms X provided with her complaint and the Council’s replies to her which it provided. I considered Ms X’s comments on a draft version of this decision.

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What I found

6. Ms X’s child, B, has an Education Health and Care Plan (EHC Plan) as they have special educational needs. The EHC Plan sets out B’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.
7. In December 2019, the Tribunal decided what the EHC Plan should say. Ms X says the Council then failed to provide the support it directed. And failed to use its reasonable endeavors from April to July 2020 to meet the EHC Plan, as required by the COVID- 19 regulations.
8. Ms X also says the Council failed to find a suitable school for B. She appealed to the Tribunal again about the suitable placement. The Tribunal is due to decide the case in mid February 2021.
9. The Council has accepted:
1. It failed to provide the right support between May 2019 and April 2020.
2. It failed to use its best endeavours to meet the EHC Plan’s requirements between April and July 2020.
10. The Council has offered £2800 to remedy this. It says the failures are in relation to occupational therapy support and specialist dyslexia support. It has offered an amount to cover the cost of the lost support.

Analysis

11. We cannot investigate whether the Council’s proposed support and placement is adequate as the Tribunal is considering this.
12. The accepted failure to provide parts of the EHC Plan is not separable from the decision on where B should be educated, which the Tribunal is currently considering. This means it is not possible for us to assess the injustice to B and Ms X from the over all loss of provision until the Tribunal has reached its decision. We can then know what B has missed out on.

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Final decision

13. We will not investigate this complaint. This is because it is not possible to assess the full direct injustice until the Tribunal decision is known.

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Investigator's decision on behalf of the Ombudsman