Summary: We will not investigate Ms X’s complaint about Education Health and Care Plan annual review issues. We cannot investigate the same issues a Tribunal is considering. And it is not appropriate at this time to consider separable issues.

The complaint

1. The complainant, whom I shall call Ms X, says the Council did not hold an Education Health and Care Plan (EHC Plan) annual review properly for her child, B.

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The Ombudsman’s role and powers

2. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
3. 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

4. I considered information provided by Ms X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Ms X says her child, B has special needs which means they have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
7. Ms X says the EHC Plan annual review was due in March 2022. She says it was held in January. She says information was not provided to the parents properly in advance. She says the Council did not follow the procedure for deciding what to do after the annual review, and delayed. She says any changes to the EHC Plan will now be delayed. She says the effect on all this is the EHC Plan does not now meet B’s needs and they are appealing to the Tribunal the EHC Plan content.
8. We cannot investigate issues which a Tribunal is considering. The effect of, or injustice caused by the alleged faults before the annual review is the content of the EHC Plan. We cannot look at this.
9. We could look at separable issues, such as the delay in the process following the annual review. However, it is not suitable to do so while the Tribunal continues.
10. Ms X was unhappy with the Council’s reply to her complaint. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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Final decision

11. We will not investigate Ms X’s complaint because we cannot investigate issues a Tribunal is considering, and it is not the right time to investigate separable issues.

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Investigator's decision on behalf of the Ombudsman