Summary: We will not investigate Ms X’s complaint about Council actions and failure to meet statutory timescales during her child’s Education Health and Care needs assessment and her dissatisfaction with the final plan. She has appealed to the tribunal about the content of the plan and the delay issuing the plan did not cause a significant injustice.

The complaint

1. Ms X complains the Council failed to take account of her or her child’s views before it finalised an Education Health and Care (EHC) Plan. It also did not meet the statutory timescales. She also disagrees with the content of the plan. She wants the Council to acknowledge it did not comply with the statutory process and agree to name a specialist education provision in her child’s EHC Plan.

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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 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)
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 any injustice is not significant enough to justify our involvement.

(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. Ms X applied for an Education Health and Care (EHC) Plan for her child, Y, in December 2023. The Council issued the plan in early May 2024. Ms X disagreed with the content of the plan and has appealed to the SEND Tribunal.
10. Ms X complains the Council did not meet the statutory timescales during the EHC assessment process and did not take her views or those of her child’s current school into account before finalising the plan. We cannot investigate this. The consequence of the Council’s actions is that Ms X is dissatisfied with the final EHC Plan and Ms X has used her right of appeal to the tribunal about this. Ms X can raise any dissatisfaction with Council behaviour as part of her appeal and the tribunal will also consider her views as part of its process. We cannot investigate matters connected to an appeal or that can be raised as part of an appeal.
11. There was a short delay issuing the final plan over the 20 week statutory timescale but this was not sufficient to cause a significant injustice and so we will not investigate this.

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Final decision

12. We will not investigate Ms X’s complaint because she has appealed to the SEND Tribunal about the content of the plan and the delay issuing the final plan did not cause a significant injustice.

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Investigator's decision on behalf of the Ombudsman