Summary: We have discontinued our investigation of this complaint, about the Council’s refusal to issue an education, health and care plan while it applied for a review of a tribunal decision. This is because it is inextricably linked to a matter subject to appeal and is therefore outside our jurisdiction. We cannot investigate a new complaint, about the Council refusing to make amendments to the final plan, because the complainant has not made a formal complaint to the Council about this yet.

The complaint

1. I will refer to the complainant as Mr B.
2. Mr B complains the Council did not issue an education, health and care (EHC) for his daughter, within its deadline for doing so after the conclusion of an appeal to the SEND Tribunal. Mr B says this meant there was a delay in his daughter receiving the provision required by the plan.
3. The Council has now issued the EHC plan, but Mr B also complains it has refused to make amendments he has requested.

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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 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. 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.
7. 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. (Local Government Act 1974, section 26(5), section 34(B)6)

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How I considered this complaint

8. I reviewed Mr B’s correspondence with the Council.

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What I found

9. The Council issued an EHC plan for Mr B’s daughter. Dissatisfied with some of the content of the plan, Mr B submitted an appeal to the SEND Tribunal. The Tribunal issued its decision in May 2024, upholding the appeal and ordering the Council to make several changes to the plan. The Council then applied to the Tribunal for a review of the judge’s decision, and to allow a stay of implementation for the changes.
10. Mr B later complained the Council had failed to issue the amended EHC plan within the statutory five-week deadline for doing so, after the Tribunal issued its decision. The Council refused to accept the complaint on the grounds it was related to ongoing legal proceedings, and explained to Mr B it could not issue the plan while the matter was still before the Tribunal. Mr B then referred his complaint to us.
11. In September, the Tribunal refused the Council’s application for a review. The Council then issued the final EHC plan a few days later. Mr B then asked the Council to make new amendments to the plan, but the Council refused because the plan was at final, not draft, stage.

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Analysis

12. As explained in paragraphs 4 and 5, the law prevents us from investigating any matter which forms part of an appeal to a tribunal.
13. I acknowledge Mr B’s complaint concerns matters which arose after the conclusion of his appeal to the SEND Tribunal. However, the Council was entitled to apply for a review of the SEND Tribunal’s decision and to seek permission to appeal to the Upper Tribunal; and I am satisfied this clearly forms part of the same proceedings as Mr B’s own appeal.
14. As a delay in implementation formed part of the Council’s review application, this means we have no power to investigate the same matter. The fact the Tribunal ultimately rejected the Council’s application does not change this.
15. Mr B has now also complained to us that the Council has declined to make amendments to the EHC plan, which it issued shortly after the Tribunal refused its application.
16. As this is an entirely new matter we cannot accept it for investigation now. Mr B will first need to raise it as a new complaint to the Council.
17. However, I will observe it is unlikely we would find fault on this matter anyway. The Council’s duty was to issue a final EHC plan in accordance with the Tribunal’s order. It had no scope to make further amendments to the plan at that stage, even at Mr B’s request, and so it appears the Council was correct to refuse this. If Mr B feels the plan is inadequate or inappropriate, he will need to ask the Council to carry out a formal review of it.

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Final decision

18. I have discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman