Summary: We cannot investigate Mrs X’s complaint about the Council’s decision to end her daughter’s Education Health and Care Plan because she has appealed this decision. Nor will we investigate the other parts of her complaint because they either relate to the appeal, or the Council has already satisfactorily addressed them.

The complaint

1. Mrs X complained the Council decided to end her daughter, Ms Y’s, Education, Health and Care (EHC) Plan following an annual review. She said it also refused to pay direct payments toward provision. Mrs X also complained the annual review did not consider Ms Y’s transition into adult services and the Council lost the annual review paperwork.
2. Mrs X wants the Council to continue the EHC Plan and refund her for things she has had to pay for. She also wants an apology and the Council to make improvements.

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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 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. 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.
6. 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 it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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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. In February 2024, the Council held a review of Ms Y’s EHC Plan. It later lost the review paperwork.
10. After this, the Council issued a decision to end Ms Y’s EHC Plan at the end of the 2023/24 academic year. Ms Y had a personal budget in support of her EHC Plan and received direct payments to pay for her support. The Council and Mrs X had an agreement where Mrs X would request payments which the Council would approve or deny. In May 2024, Mrs X requested funding for an online course which the Council told her it would not pay for.
11. In a complaint response to Mrs X, the Council accepted it had lost the annual review paperwork from February 2024. It apologised and offered to hold a new review meeting.
12. We cannot investigate the Council’s decision to end the EHC Plan. Mrs X has appealed the Council’s decision to the SEND Tribunal. The law says we cannot investigate complaints where someone has appealed to the SEND Tribunal.
13. Nor can we investigate the Council’s refusal of direct payments, because this matter is linked to the Council’s decision to end the EHC Plan at that academic year. The courts have confirmed that we cannot look at the consequences of a council’s decision where the decision itself has been, or could be, the subject of an appeal. The decision to end the personal budget relates to the decision to end the EHC Plan and is therefore not separable from the issues which have been appealed.
14. The Council has offered to hold a new review meeting. This is a proportionate remedy for the injustice caused by losing the paperwork and not planning for Ms Y’s transition into adult services. Further investigation by us into this matter would be unlikely to lead to a different outcome.

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Final decision

15. We will not investigate Mrs X’s complaint because she has appealed part of it to the SEND Tribunal and we cannot investigate any issues linked to the appeal. Also, the Council has already offered a suitable remedy for the remaining part of the complaint.

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Investigator's decision on behalf of the Ombudsman