Summary: We will not investigate Mrs X’s complaint about the Council’s handling of her son’s Education Health and Care Plan annual review because she has used her right of appeal to the SEND Tribunal. Her complaint that the Council failed to put in place suitable full-time education for her son is too closely linked to the annual review process and we cannot recommend the Council reimburses her legal fees from the appeal. While it is clear the Council delayed in finalising the Plan this did not cause significant enough injustice which is separate from the outcome of the review to warrant further investigation.

The complaint

1. The complainant, Mrs X, complains the Council failed to provide her son Y with a suitable full-time education from January 2024. She also says the Council delayed in issuing Y’s final Education Health and Care (EHC) Plan as part of the annual review process and did not name the family’s preferred school in the Plan. She says the Council’s actions caused her stress and depression, her husband lost earnings due to having to look after Y at home and the family had to instruct a solicitor to help with their appeal against the EHC Plan at a cost of £1,800.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
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.

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How I considered this complaint

6. I considered information provided by Mrs X and the Ombudsman’s Assessment Code.

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My assessment

7. Because Mrs X has appealed against the EHC Plan we cannot investigate any complaint about the content of the plan or the way the Council decided what to include in it.
8. Mrs X says the Council failed to provide Y with suitable full-time education from January 2024 but it is clear that Y’s absence from school related to his special educational needs and to Mrs X’s reasons for wanting the Council to name a specialist setting in Y’s amended EHC Plan. The issue is therefore too closely related to the outcome of the review and the content of the Plan for us to investigate this issue separately.
9. In any event, the Council confirms Y’s previously named school provided alternative provision for him while he was out of school and that the Council agreed additional funding to meet his needs while it found a new school for him. It is therefore unlikely we would find fault by the Council even if we had jurisdiction to investigate this point further.
10. While Mrs X’s complaint about the Council’s delay in issuing the final plan is an issue that is separable from the content of the plan, the delay in this case (2.5 months) is not significant enough to warrant investigation. We could not say that had the Council finalised the EHC Plan sooner it would have named Mrs X’s preferred school or that Y would have returned to school sooner.
11. Mrs X says she has spent £1,800 on solicitors’ fees to help with her appeal but we cannot provide a remedy for this. It was for the SEND Tribunal to decide whether to award Mrs X costs as part of her appeal and to decide on the amount of costs the Council should reimburse her for.

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Final decision

12. We cannot investigate this complaint. This is because the main pat of the complaint concerns the suitability of the educational setting listed in Y’s EHC Plan. The Council has now named a new school and Mrs X has appealed against the content of the EHC Plan. We cannot provide a remedy for the costs Mrs X incurred as part of her appeal and the Council’s delay in completing the annual review process did not cause her significant injustice which is separate from the EHC Plan issues to warrant further investigation.

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Investigator's decision on behalf of the Ombudsman