Summary: We will not investigate Miss X’s complaint about delays in the review of her child’s Education, Health and Care Plan because the Council offered a suitable remedy. We cannot investigate parts of Miss X’s complaints because she used her right to appeal to a Tribunal. We cannot investigate Miss X’s complaints about how her child was taught in school because the law says we cannot. We will not investigate the remaining parts of Miss X’s complaint because there is insufficient evidence of fault, and an investigation is unlikely to achieve any additional outcome.

The complaint

1. Miss X complained the Council:
1. delayed finalising Y’s EHC Plan following an emergency annual review;
2. failed to consult with her preferred schools and named an unsuitable school in Y’s final EHC Plan;
3. failed to deliver the content of Y’s Education, Health and Care (EHC) Plan to them;
4. failed to communicate with her effectively.
2. Miss X says the matter impacted on Y’s education and caused her distress and frustration.

Back to top

The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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.
5. 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)
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
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:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

Back to top

How I considered this complaint

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

Back to top

My assessment

Delay in review of Y’s EHC Plan

11. We will not investigate Miss X’s complaint that the Council delayed finalising Y’s EHC Plan following an annual review.
12. In its complaint response the Council accepted it delayed completing Y’s EHC Plan and exceeded statutory timescales by three months. It offered Miss X a symbolic payment of £300 to acknowledge the frustration caused. This is in line with the Ombudsman’s Guidance on Remedies.
13. During another recent investigation by the Ombudsman the Council agreed to provide an action plan to explain how it will improve its SEND services to ensure it meets statutory timescales.
14. Therefore, an investigation into this matter is unlikely to achieve any additional outcome, and we will not investigate this complaint.

Delivery of Y’s EHC Plan

15. Miss X said the Council failed to deliver the content of Y’s EHC Plan to them. Miss X also said Y was being taught in a “corridor” at the school by a Teaching Assistant (TA). In the Council’s complaint response, it said Y was taught 1:1 in a dedicated teaching space by a TA. It said it had delivered Section F of Y’s EHC Plan to them.
16. Section F of Y’s EHC Plan does not specify where and how Y will be taught in the school. Therefore, we cannot investigate Miss X’s complaint about these issues because the complaint relates to the internal management of the school, and the law says we cannot investigate this matter. We can only investigate whether the school delivered the content of the EHC Plan to Y on behalf of the Council.
17. We will not investigate how the Council delivered the content of Y’s EHC Plan to them. The provision detailed within Section F of Y’s EHC Plan does not specify they must be taught by a teacher or in a peer group setting. There is insufficient evidence of fault in how the Council delivered the content of Y’s EHC Plan, and so we will not investigate.

School consultations

18. Miss X complained about the Council’s consultations with her preferred schools during the EHC review process. Miss X said the Council finalised Y’s EHC Plan and named an inappropriate setting.
19. We cannot investigate these complaints. The consequence of Miss X’s alleged fault is that the named school in Y’s EHC Plan is wrong. Because Miss X has used her right to appeal the content of Y’s EHC Plan to the SEND Tribunal the law says we cannot investigate.

Poor communication

20. Miss X complained about the Council’s poor communication. In its complaint response, the Council acknowledged there were times it did not communicate effectively with Miss X. It said it would remind officers of the importance of timely responses.
21. An investigation into this matter is unlikely to achieve any additional or worthwhile outcome, and so we will not investigate.

Back to top

Final decision

22. We will not investigate part of Miss X’s complaint because the Council offered a suitable remedy. We cannot investigate parts of Miss X’s complaints because she used her right to appeal to a Tribunal. We cannot investigate matters relating to the internal management of schools. We will not investigate the remaining parts of Miss X’s complaint because there is insufficient evidence of fault, and an investigation is unlikely to achieve any additional outcome.

Back to top

Investigator's decision on behalf of the Ombudsman