Summary: We will not investigate this complaint that the Council was at fault in failing to issue the complainant’s son’s Education Health and Care Plan on time, and in the way it communicated with him. This is because our intervention would not lead to a different outcome. We cannot investigate his complaint about the content of the Education Health and Care Plan because he used his right to appeal to the First-tier Tribunal (Special Educational Needs and Disability), and this places the matter outside our jurisdiction.

The complaint

1. The complainant, who I will refer to as Mr X, complains that the Council was at fault in failing to issue his son’s Education Health and Care Plan (EHC Plan) within the prescribed timescale, in carrying out a flawed consultation process leading to an unreasonable outcome, and in failing to communicate reasonably.

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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 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 we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. 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)
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.

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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. Mr X’s son has special educational needs and an EHC Plan. Mr X complains, and the Council accepts, that the process of assessing his son’s needs and issuing the plan was not completed within the proscribed timescale. It has also accepted that its communication with Mr X was flawed. It has apologised for these failings and has offered a symbolic payment to Mr X.
9. Mr X further complains that the Council failed to carry out necessary consultations while assessing his son’s needs. He says that, as a result, the Council unreasonably named a mainstream setting in the final EHC Plan, compelling him to use his right to appeal to the SEND Tribunal. As I understand it, the matter did not proceed to a hearing and Mr X’s son is now on roll at a specialist setting.
10. The Ombudsman will not investigate Mr X’s complaint. His complaints about the EHC Plan delay and the Council’s communication have been upheld. The remedy the Council has offered is reasonable and defensible in the circumstances of the case and the Ombudsman’s intervention is not therefore warranted.
11. Other than the delay, we cannot consider the alleged flaws in the assessment process. Neither can we attribute to them the outcomes Mr X identifies. This is because he has used his right to appeal to the SEND Tribunal. This places the content of the EHC Plan, including the placement named, outside our jurisdiction by law. There is no discretion available to us.
12. The courts have established that this restriction applies to any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. In this case, this applies to how the assessment was carried out, which is inextricably bound up with the Council’s decision to name a mainstream school. We cannot investigate.

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Final decision

13. We will not investigate Mr X’s complaint because our intervention would not lead to a different outcome, and Mr X has used his right to appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman