Summary: We have discontinued our investigation into Mrs X’s complaint about the Council failing to meet the Special Education Need provision set out in her son’s Education Health Care Plan. Mrs X has used her appeal rights and therefore the complaint is outside the Ombudsman’s jurisdiction.

The complaint

1. Mrs X complained the Council did not meet the Special Education Need (SEN) provision set out in her son’s (Y’s) Education Health Care Plan (EHC Plan) while she was appealing to the SEND Tribunal.
2. Mrs X also complained the Council acted unlawfully by amending the EHC Plan in April 2022 to remove some provision. She said the Council also acted unlawfully by sending the EHC Plan to the NHS provider of SALT, who advised that Y could not receive such services because the school named in the EHC Plan was independent.
3. As a result, Mrs X said Y was out of school between February and September 2022.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
5. We must also consider whether any fault has had an adverse impact 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 or continue an investigation if we decide:
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended)

6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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.
8. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
9. The courts have established that if someone has lodged an appeal 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 was engaged 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).

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How I considered this complaint

10. I have considered Mrs X’s complaint and have spoken to her about it.
11. I have also considered the Council’s response to Mrs X and to my enquiries.
12. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

13. The Council issued Y’s Final EHC Plan in February 2022.
14. The Plan specified the number of hours of Speech and Language Therapy (SALT) that Y required during each school term, along with other school-based provision set out against five outcomes for Y in Section F.
15. The Plan named a type of school that Y should attend but not a specific school placement.
16. In March, Mrs X appealed Y’s EHC Plan on the grounds it did not properly describe Y or reflect his needs and did not name a school.
17. The law says that where someone has used their right of appeal, the Ombudsman has no jurisdiction to investigate. The courts have said where the substance of a complaint to us is something in respect of which the complainant has a right of appeal, reference or review before a tribunal, we cannot investigate it. This includes complaints which raise matters linked to such an appeal.
18. Y’s missed SALT was a direct consequence of the Council’s decision not to name a school in Y’s EHC Plan. The provision set out in Section F of the February 2022 EHC Plan is clearly all intended to be delivered in a school setting. Mrs X appealed to the SEND Tribunal to require the Council to name a school where it had not done so. It is impossible for us to separate the reason for the missed provision from the substance of Mrs X’s appeal. Therefore, we cannot investigate the reasons for, or consequences of the missed provision, nor provide any remedy, and so I have discontinued my investigation of this point.
19. Mrs X also complains about the Council’s decision to issue a further EHC Plan for Y in April 2022 without consulting her and that these revisions removed some of the provision outlined two months previously.
20. I recognise the law requires councils to consult with the parent and young person before issuing a final EHC Plan. Only the courts can decide whether the Council acted unlawfully. We instead determine whether there was fault in the Council’s actions.
21. Mrs X could have appealed the content of the April 2022 EHC Plan to the SEND Tribunal. The SEND Tribunal has a duty to consider the views of a young person and their parents in reaching its decision, as well as the power to direct the local authority to do so. I believe it would have been reasonable for Mrs X to have appealed the new EHC Plan if she wished to challenge it, either as part of the appeal she had ongoing or by bringing new proceedings. For that reason, I have discontinued my investigation on this point.
22. The final part of Mrs X’s complaint is the Council gave ‘false information’ to the NHS that Y was attending the named independent school which meant the SALT service was not available to Y. Mrs X said she confirmed that Y was being home schooled and should therefore have been able to access the SALT service.
23. To the extent no SALT was provided in this period, I have already explained we cannot investigate that. What remains is an administrative matter relating to communication between the Council and the SALT provider. Given what was happening at the time, I cannot see this caused Y or Mrs X any significant injustice and so I will not investigate this point further.

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Final decision

24. I have discontinued my investigation. Mrs X has used her appeal rights and therefore the complaint is outside the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman