Summary: Mrs X complained about the Council’s handling of her child’s Education, Health and Care (EHC) assessment and the outcome of their EHC plan. I ended this investigation because Mrs X has appealed to the SEND tribunal and the substantive complaints are not separable from that appeal. Further investigation into the remaining matters will not achieve an outcome Mrs X wants, or they need to go through the Council’s complaints process first.

The complaint

1. Mrs X complained about how the Council carried out the Education, Health and Care needs assessment for her child, Y. She further complained about the content and named provision in the final Education, Health and Care Plan, about delays following her appeal to the SEND tribunal and about a lack of alternative provision.
2. Mrs X also complained about a lack of response to her request for social care support for Y and about matters involving her other son, Z’s education.

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The Ombudsman’s role and powers

3. 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)
4. 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 not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint,

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

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How I considered this complaint

5. I spoke to Mrs X about her complaint and considered information she provided.
6. I considered information from the Council.
7. Mrs X and the Council had an opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Education, Health and Care Plan (EHC) Plan

8. Children with complex needs may require an Education, Health and Care (EHC) Plan. This is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.

The SEND Tribunal

9. Certain SEN decisions have a right of appeal to the SEND Tribunal. This includes decisions about the named placement and the type of provision outlined within the final plan. We would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect the person to appeal.
10. The SEND Tribunal represents a single route of redress for children and young people with special educational needs and disabilities who also have health and social care needs. As well as having the power to order amendments to Sections B, F and I of an EHC plan, the Tribunal can recommend changes to sections C (health needs), D (social care needs), G (health provision), H1 and H2 (social care provision).
11. 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.

What happened

12. Mrs X has a child, Y who in 2021 was of pre-school age and due to start in reception in September 2021. The Council carried out an Education, Health and Care (EHC) assessment for Y during 2021. In August 2021 the Council agreed to make an EHC plan for Y. The Council issued a final EHC plan for Y in November 2021 which named a ‘specialist provision’ in section I. The Council said there was a short delay in issuing the final plan because Mrs X asked for extra time to comment on the draft EHC plan.
13. In January 2022 Mrs X request an Education Otherwise Than at School (EOTAS) package which the Council rejected. Following further assessments, reports and requests from Mrs X the Council issued an amended final EHC plan in February 2022 which named school F as Y’s named placement.
14. Mrs X disagreed that school F could meet Y’s needs and Y did not attend. Records show the Council agreed a personal budget with Mrs X for Y in March 2022 to pay for education at home.
15. In May 2022 Mrs X appealed to the SEND tribunal about both the provision outlined in the EHC plan and against the naming of school F. Mrs X also asked the tribunal to make recommendations for Y’s health and social care.
16. Between July and December 2022 Mrs X made various complaints to the Council including instructing a solicitor to issue a Pre-Action Protocol Letter for a Judicial Review. Mrs X’s substantive complaints included:
• A delay in completing the EHC assessment.
• The EHC plan was unlawful.
• Disagreement with the naming of school F which she says cannot meet Y’s needs.
• Disagreement with provision outlined in the EHC plan.
• Failure to put in place alternative provision when Y did not start reception in September 2021.
• The Council sending misleading and false information to the tribunal.
17. The Council’s position is that the substantive matters are for the determination of the tribunal.
18. Mrs X remained unhappy and complained to us. At the time of writing Mrs X’s appeal is yet to be heard by the SEND tribunal.
19. Since complaining to us Mrs X has raised complaints about matters surrounding her other child, Z’s education. She has also raised a complaint about a lack of response to her request for a parent carer assessment and aspects of social care needs for Y.

My findings

20. Mrs X says the Council delayed completing Y’s EHC assessment. The Council agreed to assess Y in June 2021 and issued a final plan in December 2021 which is two months longer than statutory timescales. Further investigation into this delay may find fault however this does not form part of the substantive issue and I would unlikely be able to provide a meaningful remedy for Mrs X or achieve an outcome Mrs X wants.
21. Y did not start reception in September 2021 however there is no legal duty for a council to arrange alternative educational provision for a child until the start of the school term after the child’s fifth birthday. In this case, the duty would not have applied until April 2022. Mrs X had rights of appeal to the SEND tribunal following the issuing of the EHC plan in December 2021 and February 2022 which she exercised. I also note the Council provided a personal budget from March 2022 onwards. Further investigation into this would not lead to a different outcome or achieve anything further.
22. Mrs X’s substantive concerns are about the content of Y’s EHC plan, including the provision and the named placement. These matters are outside of our jurisdiction because of Mrs X’s appeal to the SEND tribunal which is yet to be heard. Mrs X’s appeal right arose in December 2021 and February 2022 respectively and she exercised that right in May 2022.
23. The opinions of Council officers about the child’s needs, the way that officers arrived at those opinions, and the reports or views they sought or did not seek are not separable from matters relating to the child’s SEN that are for the SEND Tribunal to decide. Mrs X can raise her concerns about the Council providing it with misleading or false information at the hearing.
24. Since complaining to us Mrs X provided further information about complaints she wishes to make about her other child, Z and about a lack of response to her request for social care support. These matters are separate to the complaint brought to us and have not been through the Council’s complaints procedure. Mrs X should complain to the Council first and if she is dissatisfied with the Council’s response, she can then bring the matters back to us.
25. For the reasons outlined above I ended this investigation as the substantive matters are outside of our jurisdiction because of Mrs X’s appeal to the SEND tribunal. Further investigation into other matters at this time will unlikely achieve an outcome she wants or lead to a different outcome.

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Final decision

26. I ended this investigation because the substantive elements of the complaint are outside of our jurisdiction and further investigation into the other matters will not lead to a different outcome or achieve an outcome Mrs X wants.

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Investigator's decision on behalf of the Ombudsman