Summary: We will not investigate this complaint about how the Council dealt with matters concerning an Education Health and Care needs assessment. This is because some matters are not separable from an appeal to the SEND Tribunal and further investigation into other matters would not lead to a different outcome.

The complaint

1. Mrs X complains about how the Council dealt with matters concerning her son’s Education Health and Care (EHC) needs assessment. Mrs X says the Council:
1. Failed to undertake appropriate assessments during the EHC needs assessment process.
2. Provided misleading information to the SEND Tribunal.
3. Delayed issuing an Final EHC plan on time and delayed amended an inaccuracy in the plan, after the SEND Tribunal issued its order.
4. Inappropriately asked Mrs X to sign a consent form.
5. Delayed approving applications for the payment of mileage.
6. That different drivers were used to transport her son to school.

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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 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 further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (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. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal… such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.

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How I considered this complaint

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

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My assessment

8. The Council carried out an EHC assessment of Mrs X’s son’s needs. It decided not to issue a final EHC plan and Mrs X appealed that decision to the SEND Tribunal.
9. I cannot investigate Mrs X’s complaint that the Council failed to undertake appropriate assessments when carrying out it’s EHC needs assessment or about information provided to the Tribunal by the Council. This is because these matters are not separable from Mrs X’s appeal to the SEND Tribunal.
10. The injustice caused by the Council not requesting the assessment was that the decision not to issue an EHC plan was not properly informed and therefore wrong, which was the subject of Mrs X’s appeal. Also, the Tribunal has wide powers itself to order reports be completed, even if they did not form part of the appeal submitted by the parent. We have no jurisdiction to investigate what information was provided to the Tribunal during the appeal and this is something that was or could reasonable have been raised during the appeal.
11. Whist we cannot investigate these elements of Mrs X’s complaint, I do note that the Council has upheld both of these complaints apologised and offered to reimburse Mrs X for assessments she arranged herself.
12. In responding to the other elements of Mrs X’s complaint, the Council fully upheld her complaint and apologised to Mrs X. The Council offered to make a payment to Mrs X or £1000 to the distress the issues had caused her and £500 for the time and trouble she had been too pursuing the matter. The Council detailed the actions it had take or would take to avoid the issues occurring again.
13. I will not investigate these remaining issues because doing so would not lead to a different outcome. The Council accepted fault causing injustice and offered a suitable remedy using the Ombudsman’s guidance. The proposed action it has taken to avoid a recurrence of the issues raised are appropriate and proportionate. Therefore, further investigation is unlikely to achieve a different outcome.

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Final decision

14. We will not investigate Mrs X’s complaint because some elements are not separable from her appeal to a tribunal and it is unlikely investigation into other elements would achieve a different outcome.

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Investigator's decision on behalf of the Ombudsman