Summary: We will not investigate this complaint that the Council named an inappropriate placement in the complainant’s daughter’s Education Health and Care Plan (EHCP), and failed to inform her she could claim reimbursement of travel costs she had incurred. By law, we cannot consider matters relating to the content of an EHCP, and the investigation would not achieve anything substantially different to offer the Council has made in respect of the travel costs.

The complaint

1. The complainant, who I will refer to as Mrs X, complains that the Council was at fault in naming an inappropriate placement in her daughter’s EHCP, in failing to inform her of the right to claim milage costs for travel to her daughter’s therapies, and in failing to show empathy towards her family’s circumstances.

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The Ombudsman’s role and powers

2. 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)
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 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. 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

6. I considered information provided by the complainant.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mrs X’s daughter has special educational needs and an EHCP. Mrs X complains that the placement named in her daughter’s amended EHCP following the 2022 annual review was inappropriate. She says that, as a consequence of this decision, she was compelled to unnecessarily go through the process of mediation and an appeal to the SEND Tribunal.
9. Mrs X says the Council was aware that she was facing difficult personal circumstances and complains that its actions were characterised by a lack of empathy.
10. Mrs X says that, during her appeal hearing, the Judge made her aware that she could have claimed travel costs for her daughter’s attendance at therapies between September 2019 and July 2022. She complains that the Council did not tell her she could do so and that, as a result, she suffered financial loss.
11. The Ombudsman cannot investigate Mrs X’s complaint about the educational setting named in her daughter’s EHCP. Neither can we take a view on whether the Council’s actions showed a lack of empathy. This is because Mrs X used her right to appeal to the SEND Tribunal. By law, this places matters relating to the content of the EHCP outside our jurisdiction. There is no discretion available to us here. The courts have held that this restriction applies not only to the decision, but to all matters inextricably linked to it. We cannot intervene.
12. Turning to the matter of the travel, the Council has responded to Mrs X’s request for reimbursement backdated to 2018. Given the length of time that has passed, it has declined to consider whether its officer was at fault in 2018 and reimburse Mrs X’s costs. It has however offered to make an ex-gratia payment of £300 to Mrs X in recognition of the issue.
13. Mrs X regards this as offer as insufficient. But that does not mean it is so disproportionate as to warrant investigation by the Ombudsman. It is unlikely that the investigation would result in an outcome substantially more favourable for Mrs X, so our intervention is not warranted.

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Final decision

14. We will not investigate Mrs X’s complaint because, by law, we cannot consider matters relating to the content of an EHCP, and investigation would not achieve anything substantially different from the offer the Council has made in respect of the travel costs.

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Investigator's decision on behalf of the Ombudsman