Summary: Ms X complained about the Council’s actions in relation to her son, Y’s, Education, Health and Care (EHC) plan. We will end this investigation. Part of the complaint is late, and we cannot investigate the actions of schools or issues that have been considered by a Tribunal. The only part we could investigate relates to how the Council conducted an EHC plan annual review. However, the Council has already upheld this part of Ms X’s complaint and offered an appropriate remedy. There is nothing more that could be achieved by further investigation.

The complaint

1. Ms X complained about the Council’s actions in relation to her son, Y’s, Education, Health and Care (EHC) plan. She said the Council:
1. failed to ensure Y received education and special educational provision as specified in his EHC plan during 2020 and 2021;
2. failed to include health provision in section G of the EHC plan;
3. breached data protection regulations after it sent a final EHC plan and assessments to an unknown email address; and
4. made errors during the EHC plan annual review process in 2021.
2. Ms X wants the Council to take responsibility for its failings and the actions of Y’s primary school. She wants compensation for a deterioration in Y’s needs; his loss of educational provision and for the stress and impact the Council’s actions has had.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
6. 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.
7. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
8. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
9. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))

Our discretion to end investigations

10. 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:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

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

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How I considered this complaint

11. I spoke with Ms X and considered information she provided.
12. I considered information provided by the Council.
13. Ms X and the Council had the opportunity to comment on the draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

14. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections, only the SEND Tribunal can do this. The sections include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section G: The health provision required by the child or young person.
15. Councils must review an EHC plan within 12 months from the date the plan was made (meaning the date the plan was finalised). They must then review the plan every 12 months after this as a minimum. This is called the ‘annual review’.

What happened

16. Ms X complained to the Council in May 2021 that Y’s school had not delivered the specialist provisions as set out in his EHC plan between September 2020 and January 2021. The Council sent its final response in September 2021. It partially upheld some of the complaint. It said most of the complaint was about how Y’s school had interpreted the Occupational Therapist’s goals and the Educational Psychologists recommendations for Y and how the school had then decided to use the allocated funding to deliver the provision specified in Y’s plan. It said as soon as the Council was told of any concerns, it worked to improve the situation. It directed Ms X to the Ombudsman if she was unhappy with its response.
17. In October 2021, the Council issued a new version of Y’s EHC plan. Ms X was unhappy with its contents, including that there was no health provision set out in Section G. She appealed to the SEND Tribunal. Following the Tribunal, the Council issued a new EHC plan in June 2022.
18. During 2022, Ms X made several complaints to the Council. She complained, in part, about errors in how the Council had conducted the annual review process. She also complained the Council had sent a copy of Y’s June 2022 EHC plan to a third party by accident.
19. In its complaint responses, the Council accepted there were some errors in how it carried out Y’s annual review. It offered Ms X £200 in recognition of this, the distress caused and the time and trouble taken to raise her concerns. It also set out actions it would take to improve its services. The Council said it would consider Ms X’s complaint about the alleged data breach further if she sent in additional information.
20. Ms X took her concerns about the data breach to the Information Commissioner’s Office.
21. Ms X complained to the Ombudsman at the end of October 2022. She complained about the issues she had raised with the Council and added to her complaint that Y had been out of school from January 2021.

My findings

22. We cannot investigate complaints where a person takes more than 12 months to complain about something a council has done. We have discretion to set this restriction aside where there are good reasons, but in this case, there is no good reason why Ms X could not have brought the complaint about delivery of special educational provisions to us after she received the Council response in September 2021. This part of the complaint is late and therefore we will not investigate it.
23. In any event, even if the complaint was not late, we could not investigate. The Council is under a statutory duty to secure the provision specified in section F of the EHC plan, which it did. Ms X’s complaint is about how Y’s school implemented the outcomes in the EHC plan and its communication with her. We cannot investigate the actions of the school as these are outside of our jurisdiction.
24. Ms X says Y was out of school from January 2021 but this was not part of her complaint to the Council. We normally expect people to complain to the Council before we will investigate an issue. I have seen no reason to set aside this requirement in this case. Regardless, this part of the complaint is also late, so we will not investigate it.
25. Ms X complained the Council did not put health provision into section G of Y’s EHC plan finalised in October 2021. We cannot investigate this complaint as Ms X appealed Y’s EHC plan to the SEND Tribunal; therefore it is outside our jurisdiction.
26. Ms X also complained the Council breached data protection regulations as it sent the EHC plan and assessments to an unknown email address. Complaints about data protection are best dealt with by the Information Commissioner’s Office, and Ms X has already alerted it to the data breach. Therefore, we will not investigate this complaint.
27. The Council remedy offer for the injustice caused by the errors during the annual review process is appropriate and in line with our guidance on remedies. There is nothing more we could achieve, and further investigation would not lead to a different outcome.

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Final decision

28. I have ended our investigation into this complaint. Most of the complaint is out of our jurisdiction and there is nothing more we could achieve by further investigation of her complaint about the annual review process.

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Investigator's decision on behalf of the Ombudsman