Summary: We will not investigate Ms X’s complaint about the Council’s failure to properly record and share its reasons for not agreeing to include special educational needs provision in her child, Y’s, Education Health and Care Plan. This is because she has appealed to the tribunal about the support in Y’s Plan.

The complaint

1. Ms X complained the Council did not properly record and share its reasons for not agreeing to her request to add provision to section F of her child, Y’s Education Health and Care Plan, following an occupational therapist (OT) report.
2. Ms X said this delayed her son’s provision for many months, which has affected his progress. She wants the Council to arrange the provision and remedy the impact of the delays. She also said she was put to avoidable time and trouble trying to clarify the situation.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
5. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
6. 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.

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How I considered this complaint

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

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My assessment

9. In April 2023, following an annual review, the Council decided to amend Y’s Education Health and Care Plan (EHC Plan). Ms X was unhappy with the provision in section F of the amended Plan and lodged an appeal in June 2023. In her appeal application she said there were errors in the annual review process the Council had not rectified. She also said she was unhappy about changes to Y’s speech and language (SALT) and occupational therapy (OT) provision.
10. In July 2023, a Council panel discussed Ms X’s request for additional funding for three separate forms of support for Y, including a request for additional funding following an OT report. The Council’s record of the panel meeting said all three requests were refused but no reasons were given. In its complaint response, the Council accepted it should have recorded its reasons and apologised for not doing so. The Council said it was reviewing the way outcomes were recorded to ensure full explanations were provided.
11. The panel record also referred to a separate managers’ meeting to be arranged to discuss the case further. The Council’s complaint response says that meeting was not held as managers had been unable to arrange a suitable date and time to do so. It confirmed the OT report was part of the papers to be considered by the SEND Tribunal for the appeal.
12. Ms X was unhappy with the provision in section F of Y’s EHC Plan and has appealed to the SEND Tribunal. We cannot investigate any matter which is part of a Tribunal appeal, which includes the disputed OT provision. In addition, we cannot investigate the refusal to agree the other requests as these could have been included in the appeal.
13. We could decide to investigate the Council’s record-keeping if we considered this was separate from the appeal, but the Council has already apologised and taken steps to prevent recurrence. There is nothing further we could achieve.
14. For all these reasons, we will not investigate this complaint further.

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Final decision

15. We will not investigate Ms X’s complaint because we cannot investigate any matter that was part of, or could have been part of, an appeal to a tribunal.

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Investigator's decision on behalf of the Ombudsman