Summary: We will not investigate Mrs X’s complaint the Council delayed finalising her child, Y’s, Education, Health and Care Plan following a Tribunal order and about delays in securing Y’s educational provision. This is because the Council apologised for the delays, and further investigation is unlikely to achieve any additional outcome. We cannot investigate the Council’s conduct during the Tribunal process.

The complaint

1. Mrs X complained the Council:
• delayed finalising her child, Y’s, EHC Plan following a Tribunal order;
• delayed providing the content of her child, Y’s, EHC Plan to them; and
• failed to communicate effectively both during a Tribunal hearing and following the Tribunal’s order.
2. Mrs X says the matters caused Y to miss out on education and caused her distress.

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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 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. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
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:

• 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))

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How I considered this complaint

7. I considered information provided by the complainant.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. We cannot investigate Mrs X’s complaint about the Council’s conduct during the SEND Tribunal, including how it communicated during the Tribunal process or how it prepared for the Tribunal. This is because caselaw has determined the Ombudsman cannot investigate matters which are ancillary to the Tribunal process. It is for the Tribunal to manage the Council’s conduct during its proceedings.
10. We will not investigate Mrs X’s complaints that the Council delayed securing the education for her child, Y; about delays in finalising Y’s EHC Plan following the Tribunal’s order in late May 2024; or about the Council’s communication with her about these matters. The Council organised the education ordered by the Tribunal for Y within 14 school days and sent the final EHC Plan after four weeks and six days.
11. In its stage two complaint response, the Council apologised for the delays. Although I acknowledge Mrs X’s frustration, it is unlikely an investigation by the Ombudsman would achieve any additional outcome. Therefore, we will not investigate these complaints.

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Final decision

12. We will not investigate Mrs X’s complaint because an investigation by the Ombudsman is unlikely to achieve any additional outcome. We cannot investigate Mrs X’s complaint about the Council’s conduct during Tribunal proceedings because the law says we cannot.

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Investigator's decision on behalf of the Ombudsman