Summary: Ms X complained about the Council’s actions when drafting her son’s Education, Health and Care Plan. We have discontinued our investigation. This is because the matters complained of are intrinsically linked to the content of the Education, Health and Care Plan. This is appealable to a tribunal and is therefore outside the Ombudsman’s jurisdiction.

The complaint

1. Ms X complains about delay and procedural irregularities when drafting an Education, Health and Care Plan (EHCP) for her son, Child Y.
2. Ms X says this caused significant distress and she has ongoing concerns about the suitability of the support available for her son.
3. Ms X is represented by Mr P, in making this complaint.

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The Ombudsman’s role and powers

4. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘the Tribunal’))
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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How I considered this complaint

7. I spoke to Mr P and considered the information he provided. I made enquiries of the Council. Ms X, Mr P and the Council had the opportunity to comment my draft decision. I considered all comments received before making a final decision.

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What I found

Relevant law

8. A child with special educational needs (SEN) may have an Education Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.
9. The council is responsible for making sure that arrangements specified in a child’s EHCP are put in place. The council will usually do this by funding to a school or college to provide the necessary support.

What happened

10. Ms X’s son, Child Y has special educational needs. In 2021, he was in the final year of his primary education.
11. Following a request from Child Y’s primary school, the Council agreed to issue an EHCP. The draft EHCP was issued shortly afterwards. Ms X was unhappy with its content.
12. The final EHCP was issued on 20 October 2021. Miss X was advised of her right to appeal to the Tribunal. She was also invited to participate in mediation to try and resolve the outstanding issues.
13. A mediation meeting was held on 15 February 2022. Miss X remained dissatisfied with the content of the EHCP and so lodged an appeal to the Tribunal in March 2022.
14. She complained to the Council and the Ombudsman about the Council’s failure to include relevant information within the EHCP and its general handling of the matter.

Analysis

15. Certain decisions related to special educational needs have a right of appeal to the Tribunal.
16. Ms X’s appeal rights to the Tribunal were triggered on the date the Council issued the final EHCP in October 2021. Although Ms X did not exercise this right until March 2022, the Ombudsman cannot investigate matters that are appealable to the Tribunal from the date that appeal right arose. This is the case even though the appeal may not subsequently be heard. The Ombudsman cannot intervene.
17. Ms X says her appeal would not have been necessarily had the Council included all relevant information when drafting the EHCP in September/October 2021. Her complaint to the Ombudsman is about this and the Council’s failure to respond to emails, failure to arrange meetings in a timely fashion and failure to properly consider her concerns.
18. These alleged faults are intrinsically linked to the content of the ECHP. This places Ms X’s complaint outside the Ombudsman’s jurisdiction. This is the case even though the Tribunal may not consider the specific matters Ms X has raised. We cannot intervene.

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Final decision

19. I have discontinued my investigation. This is because Ms X’s complaint is not separable from matters that are outside the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman