Summary: We will not investigate Mr and Ms X’s complaint about delays in the Council issuing an Education Health and Care Plan. The Tribunal is currently considering the case. We also cannot investigate Mr and Ms X’s allegations of disability discrimination against a school.

The complaint

1. The complainants, whom I shall call Mr and Ms X, say the Council delayed in issuing an Education Health and Care Plan (EHC Plan). They believe their child’s school has been discriminating on grounds of disability.

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The Ombudsman’s role and powers

2. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
3. 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.
4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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

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

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My assessment

8. Mr and Ms X’s child, B, has an EHC Plan. This is because B has special educational needs. The EHC Plan 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.
9. The Council held an annual review for B’s EHC Plan in May 2021. It told Mr and Ms X in June 2021 that it would amend the EHC Plan. It sent the final amended EHC Plan in March 2022. Mr and Ms X say this is outside the legal timescales.
10. Mr and Ms X have appealed to SEND. They say the EHC Plan has not been amended properly and does not meet B’s needs.
11. We will not investigate the EHC Plan delays until the Tribunal has finished. We cannot establish the effect of any delays until what B has missed out on is known.
12. Mr and Ms X say B’s school has discriminated on grounds of disability. They say they complained to the school’s governors in September 2021 and set out six examples. We cannot investigate what happens inside a school. This includes how the school manages a child or treats them.

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Final decision

13. We will not investigate Mr and Ms X’s complaint because we should not do so while a Tribunal is considering the case and we cannot investigate a school’s actions.

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Investigator's decision on behalf of the Ombudsman