Summary: We cannot investigate Miss X’s complaint about the Council’s decision not to issue her daughter an Education, Health, and Care Plan. Miss X had appealed this decision therefore we have no jurisdiction to investigate. The Council had offered an appropriate remedy for the delays in making this decision, therefore further investigation would not lead to a different outcome. We will not investigate Miss X’s complaint about alternative education provision because there is not enough evidence of fault.

The complaint

1. Miss X complained the Council has not done enough to provide her daughter (G) with support she needed in her education, specifically:
• It refused to issue an Education, Health, and Care (EHC) Plan;
• it did not properly follow the process and delayed making this decision, and;
• her daughter had almost no education for a long period.

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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 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.
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:
• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

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

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My assessment

9. Miss X complained the Council decided not to issue an EHC Plan after it assessed her daughter. She said it used out of date reports and did not consider relevant information. Because these matters relate to the Council’s decision, which Miss X has appealed to the SEND Tribunal about, the law does not allow us to investigate her complaint here.
10. However, the Council upheld Miss X’s complaint that it delayed giving her this decision and made an offer of a symbolic payment to remedy her injustice. Because this offer is in line with our guidance on remedies, further investigation would not lead to a different outcome.
11. In her complaint to the Council, Miss X said it had her daughter had not properly accessed education for over two years. The Council provided information about its involvement in working with G’s school from May 2023 onwards, including support from an Inclusion Officer and attending multi-agency meetings. There is not enough evidence of fault in the Council’s actions to justify an investigation here.

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Final decision

12. We cannot investigate the Council’s decision not to issue an EHC Plan because it is outside our jurisdiction and there are good reasons not to investigate the remainder of Miss X’s complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman