Summary: We cannot investigate this complaint about how the Council completed an education health and care needs assessment, or its failure to provide alternative education. The complainant has appealed to the Tribunal therefore we have no jurisdiction to investigate. The Council has agreed to remedy the delay in issuing the final Education Health and Care Plan. Further investigation would not lead to a different outcome.

The complaint

1. Mrs X complained about how the Council had supported the special educational needs of her child, Y since 2017. She said it initially refused to complete an education health and care needs assessment for Y; it then failed to follow the directions of the Tribunal to complete the assessment in the specified timeframe. She said the Council did not seek professional advice or get relevant specialist assessments. She said it delayed in issuing the final Education Health and Care Plan (EHC Plan), and its consultation process was unlawful.
2. Mrs X said that since September 2023, the Council had failed to provide Y a suitable education. She said Y did not get the support needed from speech and language therapy, occupational therapy or dyslexia teachers. She said in January 2024, the Council accepted a Section 19 duty to provide Y alternative provision after the mainstream setting Y was due to attend said it could not meet needs. Mrs X is unhappy with the provision the Council is providing.
3. Mrs X said that following the Tribunal, the Council had made changes to Y’s EHC Plan that were not agreed. She said Y is still not receiving suitable provision. She said the Council’s actions had affected her ability to work and impacted on the family’s finances. She wants the Council to provide Y a suitable education.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
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 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.
8. 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 further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
9. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)

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How I considered this complaint

10. I considered information provided by the complainant and the Council.
11. I considered the Ombudsman’s Assessment Code.

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My assessment

The Council’s assessment

12. Mrs X complained about the Council’s actions from 2017. She did not complain to the Ombudsman until July 2024. Therefore, some of her complaints about the Council’s actions are late. We will not investigate the earlier parts of Mrs X’s complaint, as it was reasonable for her to come to us sooner.
13. The Council refused to complete a EHC needs assessment for Y at the end of 2022. Mrs X appealed that decision to the SEND Tribunal. We cannot investigate any concerns Mrs X has about the Council’s initial decision not to assess Y’s needs as she appealed to the SEND Tribunal. Therefore, we have no jurisdiction to investigate the matter.
14. At the start of 2023, the SEND Tribunal directed the Council to complete an assessment. The Council should have issued the final EHC plan in April 2023. It did not issue Y’s final EHC plan until September 2023. That was a five-month delay. It said that delay was because of a shortage of educational psychologists.
15. If we were to investigate, it is likely we would find the Council at fault for the delay in issuing the final EHC plan. The Council initially offered Mrs X a remedy of £200. It has since agreed to pay Mrs X £500 in recognition of the delay. That remedy is in line with our guidance. Therefore, it would not be proportionate for us to investigate this further, as further investigation will not lead to a different outcome.
16. Mrs X said the Council’s assessment of Y’s needs was not good enough. She said it did not get specialist assessments for Y and the quality of the assessments it did complete were poor. She said the Council made recommendations about the type of education Y needed, before it had completed the assessment.
17. We cannot investigate Mrs X’s complaints about the EHC needs assessment. That is because any flaws in the assessment process would have affected Y’s final EHC Plan. That includes any recommendations about type of school Y should attend. Mrs X has appealed the EHC Plan to the SEND tribunal; therefore, the law says we cannot investigate.

Educational provision

18. 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)
19. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
20. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
21. Therefore, we cannot investigate Mrs Y’s complaint the Council did not arrange a suitable education for Y from September 2023. The Council specified a mainstream setting in Y’s EHC Plan. The Council was only under a duty to provide what was specified in that EHC Plan. That EHC Plan did not specify speech and language therapy or occupational therapy.
22. Mrs X felt a mainstream setting was not suitable for Y’s needs and did not send them. Mrs X appealed the setting. As Mrs Y’s decision not to send Y to a mainstream setting was integral to the matter under appeal, we have no jurisdiction to investigate.
23. We also cannot investigate Mrs Y’s complaint about the alternative educational provision offered since the Council accepted a Section 19 duty in January 2024. That is because the Section 19 provision was offered as a consequence of the dispute over the content of the EHC Plan. That has been appealed, therefore we have no jurisdiction to investigate.
24. Mrs X is unhappy with the Council’s actions following the Tribunal, including the provision currently in place. She would need to exhaust the Council’s complaint process with any new concerns before we can consider them.

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Final decision

25. We cannot investigate Ms X’s complaint because the matters she complains of have been dealt with by the Tribunal. Therefore, we have no jurisdiction to investigate. The Council has agreed to remedy the delay in issuing the final EHC Plan. Further investigation would not lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman