Summary: We cannot investigate Ms X’s complaint about the Council’s failure to consult with her about her child, Y’s, Education, Health and Care (EHC) Plan. This is because Ms X has appealed the content of the EHC Plan to the SEND Tribunal, and the law says we cannot investigate. We will not investigate Ms X’s complaint about the Council’s complaints process because we cannot investigate the substantive complaint, and therefore an investigation by the Ombudsman is unlikely to achieve any meaningful outcome.

The complaint

1. Ms X complained the Council:
• issued a final Education, Health and Care (EHC) Plan for her child, Y, without sending an updated draft EHC Plan for her to consider first; and
• failed to consider her complaint at stage two of its complaints process.
2. Ms X says the matter has caused her frustration.

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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 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 no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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. 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)
7. 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)

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How I considered this complaint

8. I considered information provided by the complainant.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. In January 2024 the Council issued Ms X’s child, Y, a final EHC plan.
11. Ms X then complained to the Council. She said it had made changes to the final EHC Plan and had removed some of the provision listed in the draft EHC Plan without providing her the opportunity to comment in line with the SEND Code of Practice. Ms X asked the Council for information about how the decision was made.
12. The Council responded and explained why it had removed the provision from Y’s final EHC Plan and how it had made the decision. It told Ms X if she disagreed with the content of Y’s EHC Plan, she had a right of appeal to the SEND Tribunal. The Council noted Ms X had used that right.
13. Ms X complained again to the Council. She said it had misunderstood her complaint and had not responded to the fact it had failed to provide her with the opportunity to comment on a draft EHC Plan before it sent a final EHC Plan in line with the SEND Code of Practice. Ms X explained she had requested the evidence the Council had relied upon to make the decision.
14. The Council responded and told Ms X it had explained in the stage one response how it had made the decision and had sent a link to the research it relied on. The Council told Ms X the way to challenge the content of the EHC Plan is through the SEND Tribunal. It said it would not provide a formal stage two complaint response.

Analysis

15. We cannot investigate this complaint. Ms X said the Council failed to consult her about changes it made before it finalised Y’s EHC Plan. However, Ms X has appealed to the SEND Tribunal about the content of the EHC Plan. The courts have confirmed that we cannot investigate any matter which is part of, or connected to, a Tribunal appeal. Ms X’s dissatisfaction with the Council’s conduct prior to the final EHC Plan being issued is connected to the matters being appealed, and so we cannot investigate.
16. We will not investigate Ms X’s complaint about the Council’s complaint process. This is because it is not a good use of resources to investigate complaints about complaints handling, when we cannot consider the substantive matter, and therefore there is no worthwhile outcome achievable by an investigation by the Ombudsman.

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Final decision

17. We cannot investigate Ms X’s complaint because she has used her right of appeal to the SEND Tribunal. We will not investigate Ms X’s complaint about the Council’s complaints procedure because there is no worthwhile outcome by an investigation by the Ombudsman.

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Investigator's decision on behalf of the Ombudsman