Summary: We will not investigate Mrs X’s complaint about the Council’s failure to deliver provision in her children’s Education, Health and Care Plans. We cannot investigate matters already considered during Tribunal proceedings. The Council has accepted there was a delay arranging provision after the Tribunal process concluded. It has apologised for this and agreed to provide catch up sessions. An investigation by us would not lead to a different outcome.

The complaint

1. Mrs X complains the Council failed to provide her two children, Y and Z with speech and language therapy provision set out in their Education, Health and Care (EHC) Plans. She says the lack of provision impacted on their education and has caused the family distress. She wants the Council to compensate them for the lost provision and distress caused and for the Council to improve its service.

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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. 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)
4. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
5. 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))

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 the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. The Council finalised Education, Health and Care (EHC) Plans for Y and Z in early 2023. Y’s plan did not contain any Speech and Language Therapy (SALT). Z’s plan stated they should be referred to SALT for an assessment and provision should be added to the plan if required. Mrs X used her right of appeal to the SEND Tribunal about the provision listed in both plans.
10. Mrs X complains the Council should have provided SALT for Y and Z whilst they were awaiting the Tribunal hearings. We cannot investigate this. The need for SALT provision in Y and Z’s EHC Plans has been considered and decided during the Tribunal process. We cannot consider matters that have already been considered by a Tribunal. This remains the case even if Mrs X does not feel the Tribunal process provided a full remedy for the injustice caused.
11. Tribunal proceedings concluded at the end of 2023. The Council issued final amended EHC Plans for Y and Z, and both plans included SALT provision. Mrs X complained the Council then delayed putting this provision in place until March 2024.
12. In its complaint response, the Council accepted it had delayed commissioning the SALT provision and apologised to Mrs X for this. It said it would back date the funding until 1 February 2024 and would arrange some catch up sessions for Y and Z for the lost provision.
13. We will not investigate this complaint. The Council has accepted delay, apologised for this and offered catch up sessions. The complaint response also set out the actions it was taking to improve its service for families going forward. I appreciate this delay was distressing for Mrs X. However, it is unlikely an investigation by us would achieve anything more or lead to a different outcome and so we will not investigate.

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Final decision

14. We will not investigate Mrs X’s complaint. We cannot investigate any matters already considered by a Tribunal and further investigation of events since the conclusion of Tribunal proceedings would not lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman