Summary: We will not investigate this complaint about Education Health and Care Plan process faults. The Tribunal is considering the case. We cannot consider the same issues. The injustice from any separable issues cannot be established until the Tribunal’s conclusion.

The complaint

1. The complainant, whom I shall call Ms X, complains about the way the Council assessed her child’s special educational needs and the resultant Education Health and Care Plan (EHC Plan).

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The Ombudsman’s role and powers

2. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I considered information provided by Ms X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Ms X says in January 2021, she asked the Council to assess her child for an EHC Plan. She says the Council did not issue the final plan until September 2021. She is not happy with it and has appealed to the Tribunal. She says a hearing is set for March 2022.
8. Ms X says she is not happy with the way the Council handled the process and the time that it took. She says her child has missed the education support they need.
9. We cannot investigate the same issues as the Tribunal. This covers whether the EHC Plan meets the child’s needs. We also cannot look at educational provision from the date the appeal right started to its conclusion, as it is inextricably linked with the appeal. We also cannot look at the assessment process adequacy. The effect of any flaws or faults is the EHC Plan’s content, which the Tribunal is considering. The Tribunal is the remedy for the assessment being inadequate.
10. We could look at provision before the appeal rights started and any Council delays in the process. But it is not possible to find out the effect of those delays, what the child and family have missed, until the Tribunal ends and the final EHC Plan is known.

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Final decision

11. We will not investigate Ms X’s complaint because we cannot investigate the same issues a Tribunal is considering. And we cannot find out the injustice to the family of any Council faults we can look at, until the Tribunal’s conclusion.

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Investigator's decision on behalf of the Ombudsman