Summary: We will not investigate this complaint that the Council has been at fault in addressing the complainant’s son’s special educational needs. This is because the matters about which she has complained carry the right of appeal to the First-tier Tribunal (Special Educational Needs and Disability), or are inextricably linked to those matters.

The complaint

1. The complainant, who I will refer to as Miss X, complains that the Council has:

• failed to provide her son with education that addresses his special educational needs;
• failed to ensure his Education Health and Care Plan was reviewed as required for phase transition in 2023;
• issued an amended ECHP without carrying out required consultations and without giving her the opportunity to comment; and
• failed to properly communicate with her throughout the process.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. 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

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Miss X’s son has special educational needs and an EHCP, which was first issued in 2022. Miss X says the Council failed to find her son appropriate specialist provision, so he attended a nursery for the 2022/2023 school year.
8. The Council was required to ensure the annual review of the EHCP was carried out in time for the amended EHCP to be issued in February 2023. While the amended EHCP was issued on time, Miss X says no consultations were carried out. She also says she was not sent a draft of the amended EHCP before it was issued, and was thereby denied her right to comment on it before it was finalised.
9. Miss X says the Council’s actions have been characterised by repeated failure to communicate reasonably with her. As a result of the fault she identifies, her son has not been provided with a specialist placement which can meet his needs. The placement named in the amended EHCP is not appropriate, and she says she will be compelled to appeal to the SEND Tribunal. That being the case, her son will not have an appropriate school place in time for phase transition in September 2023.
10. There are no grounds for the Ombudsman to consider matters relating to Miss X’s son’s placement for the 2022/2023 school year. Miss X had the opportunity to appeal to SEND when the EHCP was issued. Where appeal rights exist, the Ombudsman normally expects them to be used. This was the appropriate way to challenge the Council’s alleged failure to offer an appropriate placement.
11. Turning to the process leading to the amended EHCP in February 2023, the Council accepts that it failed to ensure the required Annual Review was carried out. It accepts that Miss X was denied her right to comment before it issued the amended EHCP. It has apologised.
12. There are insufficient grounds for the Ombudsman to investigate this aspect of Miss X’s complaint. From the point at which the amended EHCP was issued, Mis X’s appeal rights place the matter outside our remit. The courts have held that, where something is inextricably linked to a matter which is itself out of our jurisdiction, it does not fall to be investigated by the Ombudsman. Matters relating to the alleged failure to consult, and the lack of an annual review and draft amended EHCP are not separable from the outcome Miss X attributes to them – a flawed EHCP and consequent lack of provision. As it would be reasonable for Miss X to appeal against the content of the EHCP, her complaint about it, and the related matters, does not fall to the Ombudsman to investigate.

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Final decision

13. We will not investigate Miss X’s complaint because the matters about which she complains carry the right of appeal to the SEND Tribunal, or are inextricably linked to those matters.

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Investigator's decision on behalf of the Ombudsman