Summary: We will not investigate Mr X’s complaint about the Council failing to follow the Education Health and Care Plan procedures. We cannot consider the same issues as a Tribunal or anything which is inextricably linked to it.

The complaint

1. The complainant, whom I shall call Mr X, says the Council failed to follow the correct Education Health and Care Plan (EHC Plan) procedures.

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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)

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How I considered this complaint

4. I considered information provided by Mr X.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X says the Council told him in March 2021 that it intended to end his EHC Plan. He says the Council did not follow the procedure correctly. He says the Council delayed in issuing the final EHC Plan until November 2021. He says there was no plan in place from July 2021 onwards.
7. Mr X has appealed the EHC Plan and decision to the Tribunal. This means we cannot investigate the Council’s decision.
8. The courts have said that if someone has appealed to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal right started if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
9. We cannot therefore investigate the education provided or anything linked to it, which in this case includes some social care, from November 2021 onwards.
10. Mr X says the Council has not provided documents needed for the Tribunal appeal and this has delayed the Tribunal hearing. This is not something we can look at. Providing documents for Tribunals is for the Tribunal to manage.
11. We could look at the period July to November 2021. However, as we do not know the final EHC Plan, it is not possible to work out what the full injustice of any delay from that period is.

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Final decision

12. We will not investigate Mr X’s complaint because we cannot investigate the same issues the Tribunal is covering or anything which is inextricably linked to it.

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Investigator's decision on behalf of the Ombudsman