Summary: We will not investigate this complaint about procedural fault in reviewing an Education, Health and Care Plan (EHC Plan). This is because the complainant has appealed to the First-tier Tribunal (Special Educational Needs and Disability). By law, this prevents us from considering the content of the EHC Plan, and the procedural fault cannot be separated from the matter appealed.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained the Council failed to follow the proper process when reviewing her daughter’s EHC Plan. Mrs X says this meant she did not have time to properly consider the draft EHC Plan. This led to the Council naming an unsuitable school for September 2024.

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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 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.

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How I considered this complaint

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

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My assessment

7. Mrs X’s daughter has an EHC Plan and is due to transfer to Key Stage 1 in September 2024. Mrs X complains the Council failed to follow the proper process when it reviewed her daughter’s existing EHC Plan.
8. For children transferring from early years education to Key Stage 1, the EHC Plan must be reviewed and amended by 15 February. The review for phase transfers should follow the process of a usual annual review. Four weeks after the annual review, the Council must send the proposed amendments and a draft of the EHC Plan to the parent or young person. The parent or young person then has at least 15 days to make representations about the proposed amendments / content of the EHC Plan, and to request a particular school is named. The Council must issue the final amended EHC Plan, and notice of appeal rights, within eight weeks of the draft. The entire process should take no more than 12 weeks.
9. In its response to Mrs X’s complaint, the Council accepted it did not meet the timescales set out above. It only sent Mrs X the draft EHC Plan on 14 February and issued the final EHC Plan on 15 February. The Council has apologised and offered Mrs X £200 for the identified fault.
10. As well as the process followed, Mrs X also complains about the content of the final EHC Plan, and the school the Council has named. She has appealed to the SEND Tribunal.
11. The Ombudsman will not investigate Mrs X’s complaint. It is not for us to take a view on whether the content of the EHC Plan is appropriate. This matter carries a right of appeal to the SEND Tribunal. This is the proper route by which to challenge the school named in the EHC Plan.
12. Where appeal rights have been used, the matter is outside our jurisdiction from the point at which the EHC Plan was issued. There is no discretion available to us in this matter.
13. Turning to the fault before the EHC Plan was issued, the Council has accepted it failed to follow the proper process. But the impact Mrs X attributes to this fault is the content of the EHC Plan and the suitability of the school named. This is the matter Mrs X has appealed to the SEND Tribunal. We could not therefore separate the process from the matter appealed. Even were it not for this exclusion, it is unlikely we would offer a higher remedy than the one the Council has already offered. We will not therefore investigate.

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Final decision

14. We will not investigate Mrs X’s complaint. This is because she has appealed to the SEND Tribunal. By law, this prevents us from considering the content of the EHC Plan, and the procedural fault is not separable from the matters which are the subject of the appeal.

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Investigator's decision on behalf of the Ombudsman