Summary: We will not investigate this complaint the Council has failed to make appropriate educational provision for the complainant’s daughter. The Council has accepted some fault and it is unlikely we could add to its response. Mrs X has now appealed to a tribunal which places the remainder of the complaint outside our jurisdiction.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained the Council failed to make appropriate educational provision for her daughter (Y) who has an Education Health and Care Plan (EHC Plan). Mrs X says the Council failed to ensure her daughter receives the Speech and Language Therapy (SALT) contained in her EHC Plan. Mrs X also says the Council was late finalising Y’s EHC Plan for the 2023/24 academic year. Mrs X is unhappy with the content of the EHC Plan and how the Council decided it.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, 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, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B)

4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation 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 organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)

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How I considered this complaint

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. We will not start an investigation into Mrs X’s complaint. The reasons for this are below.
10. The Council has accepted Y did not receive the SALT in her EHC Plan. It has offered a financial remedy and it is unlikely we would recommend a higher figure.
11. The Council has also accepted it missed the deadline of 31 March 2023 to issue Y’s EHC Plan following the annual review held in September 2022. This is fault but the Council has explained why there was a delay. I have not seen any evidence Y missed extra provision because of the delay. While I understand Mrs X’s frustrations, it is unlikely we would recommend a financial remedy if we were to investigate this point.
12. Mrs X is unhappy with the content of her daughter’s EHC Plan and how the Council decided it. Parents unhappy with the school or other provision named in an EHC Plan have the right to appeal to the SEND Tribunal. We expect people to use this right unless we consider it unreasonable for them to do so. The Tribunal can say what school a council must name in an EHC Plan. We have no powers to do this. Mrs X has exercised her right of appeal.
13. When an appeal has been made, the Ombudsman has no jurisdiction to consider related matters from the point at which the appeal rights were engaged to the point at which the SEND Tribunal issues its decision. The courts have held we cannot investigate any matter closely linked to the matters under appeal. This includes the school named in the EHC Plan and how it was decided. Any alleged failings in the assessment process are not separable from the matter appealed to the SEND Tribunal.
14. Mrs X’s concerns about the content of the EHC Plan are therefore outside our jurisdiction with no discretion to consider them.
15. Any fresh concerns Mrs X has about whether the provision in Y’s EHC Plan is being delivered should be put to the Council. This also applies to any concerns about the annual review for the current year.

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Final decision

16. We will not investigate Mrs X’s complaint. This is because it is unlikely we could add anything to the Council’s response and Mrs X has appealed to a tribunal.

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Investigator's decision on behalf of the Ombudsman