Summary: We cannot investigate this complaint about the Council’s decisions relating an Education, Health, and Care Plan for Ms X’s child. This is because Ms X has already appealed to the SEND Tribunal about the Council’s decisions here, and the law does not allow us to investigate. Additionally, we will not investigate Ms X’s complaint about a personal budget or how the Council secured occupational therapy for her child. It is unlikely we would find fault in the Council’s actions.

The complaint

1. Ms X complained about the support the Council provided to her child (Y), who had an Education, Health, and Care (EHC) Plan. Ms X said the Council:
1. Was wrong to withdraw a personal budget for Y’s benefit in 2022;
2. did not properly assess Y as part of their 2022 EHC review.
3. failed to consult properly with a placement in preparation of their 2022 EHC Plan, and;
4. failed to secure Y’s special education provision (SEP) between 2022 and 2023.
2. Ms X said this had a significant impact on her mental health and has impacted on Y’s education.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
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 courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
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. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

11. I have exercised discretion to consider Ms X’s complaint about the Council’s actions in 2022. This is because I am satisfied there are good reasons to consider them.
12. Ms X said the Council was wrong, in July 2022, to have withdrawn a personal budget which was in place, supporting Y’s previous EHC Plan. During the Council’s complaint correspondence, it explained it’s reasons for doing so. It said this was because it was not satisfied Y’s provision, supported by the personal budget, was suitable and it said it arranged an alternative service. We will not investigate this part of Ms X’s complaint, because given the Council’s explanations here, it is unlikely that we would find fault in this decision.
13. Ms X said the Council was at fault because of its failure to properly assess Y for their 2022 EHC Plan. Ms X also said the Council failed to properly consult with her preferred school before it issued Y’s 2022 EHC Plan, and this meant Y missed out on a placement.
14. Ms X lodged an appeal with the SEND Tribunal in relation to the Council’s decisions relating to Section F (SEP) and Section I (name and type of placement). Because those matters Ms X is complaining about at complaints b) and c), are not separable from the substance of her appeal to the SEND Tribunal, the law (paragraph five) says we cannot investigate these matters.
15. Ms X also complained the Council did not secure Y’s SEP, included within their 2022 EHC Plan, including occupational therapy (OT). In relation to Y’s SEP, not related to their OT provision, the meaning of the case law at paragraph seven, is that if a child is not attending school, and we decide the reason for non-attendance is linked to, a parent’s disagreement about the SEP or the educational placement in the EHC Plan, we cannot investigate a lack of SEP or alternative educational provision from the time of the appealable decision.
16. In relation to Y’s OT provision, the Council said it made an offer of a tutoring service and then named a school placement where it said Y could be provided with OT, but Ms X declined both offers. Therefore, we will not investigate as it is unlikely we would find fault in the Council’s actions to secure Y’s OT provision.

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Final decision

17. We will not investigate Ms X’s complaint because parts of it are excluded from our jurisdiction and of the other parts there is not enough evidence of fault.

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Investigator's decision on behalf of the Ombudsman