Summary: Ms X complained the Council failed to provide all of the support specified in her child’s Education, Health and Care Plan. The Council has accepted this. The Ombudsman has discontinued the investigation into Ms X’s complaints because it is not possible to assess the level of injustice until after the Special Educational Needs and Disability Tribunal has decided Ms X’s current appeal.

The complaint

1. The complainant, who I refer to as Ms X, complained the Council failed to ensure her child, C, was receiving the support specified in her Education, Health and Care (EHC) Plan.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. 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 may decide not to continue, with an investigation if we decide there is another body better placed to consider this complaint (Local Government Act 1974, section 24A(6))
3. 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)
4. 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.
5. 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)
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

7. I considered Ms X’s complaint and the information she provided.
8. I considered the information I received from the Council.
9. Ms X and the Council were given an opportunity to comment on a draft of this decision before I made my final decision.

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What I found

Law and Guidance

Education, Health and Care (EHC) Plans

10. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. This sets out the person’s needs and what arrangements should be made to meet them.
11. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
12. There is a right of appeal to the SEND Tribunal about the content of the final EHC plan. An appeal right about the content is only engaged once a final EHC plan has been issued. Once the Tribunal has ordered a council to amend the content in the EHC plan, it must issue the amended plan within five weeks.
13. 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 (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

What happened

14. C is a child who has a EHC Plan maintained by the Council. C’s EHC Plan was finalised and issued in January 2022.
15. Ms X says the Council named the mainstream school (‘the School’) C was already attending in their EHC plan but the School has said it cannot provide them with the support in their plan.
16. Ms X complained to the Council on 15 March 2022 and lodged her appeal with the SEND Tribunal on 24 March 2022.
17. Ms X has appealed to the SEND Tribunal about the Council’s refusal to amend the following in C’s EHC Plan:
• Section B – The child’s special educational needs;
• Section F – The provision specified in the Plan; and
• Section I – The school named in the Plan
18. The SEND Tribunal proceedings have not concluded and thus there is no final decision on the matters Ms X has appealed.
19. Ms X has exhausted the Council’s Corporate Complaint process. The Council did not investigate Ms X’s complaint about the School being named in C’s EHC Plan because the matter was being considered by the SEND Tribunal. However, the Council did uphold the remainder of Ms X’s complaints which can be summarised as the following:
• The provision specified in section F of C’s EHC Plan is not being delivered by the School;
• Speech and Language Therapy (SaLT) and Occupational Therapy (OT) has not been commissioned as set out in C’s EHC Plan;
• Ms X and professionals working with C have, on several occasions, been unable to contact the Council’s Statutory Assessment Team (SAT);
• The Council did not provide a feedback form with its Stage 1 complaints response; and
• The Council incorrectly advised Ms X to contact the Ombudsman without exhausting its three stage complaints process.
20. The Council apologised to Ms X for the failings it identified.
21. In June 2022, after issuing its Stage 3 response to Ms X’s complaint, the Council advised her to contact the Ombudsman if she wished to pursue her complaints further. Ms X brought her complaint to the Ombudsman.

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Analysis

22. Ms X’s complaint to the Ombudsman is about C’s SEN not being met at the School named in their EHC Plan and the Council’s failure to ensure the provision in the Plan is delivered. The outcome Ms X seeks is a place for C at a school that is able to meet their needs as specified in their EHC Plan.
23. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. One of those restrictions is that we cannot investigate matters that are under appeal. The SEND Tribunal is considering Ms X’s complaint about C’s special educational needs, the provision specified and the school named in their Plan. We cannot direct changes to the sections about education nor can we name a different school. Only the SEND Tribunal can do this.
24. Also, most of Ms X’s points of complaint are directly linked to the matters under consideration by the SEND Tribunal. As set out in paragraph 13 above, we cannot consider matters that are inextricably linked to the matters under appeal.
25. We can investigate the Council’s failure to ensure C received the provision set out in their EHC Plan. But we cannot know the injustice caused by this until we know the decision of the Tribunal. For this reason, I have decided to discontinue my investigation.
26. Ms X can return to the Ombudsman after the Tribunal has made its final decision. We will then be better able to assess the injustice to C from the Council’s failure to secure and deliver the provision as specified in their EHC Plan.

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Final decision

27. I have discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman