Summary: We will not investigate this complaint that the Council was at fault in the process of amending the complainant’s daughters’ Education Health and Care Plan. The aspect of the complaint relating to delay has been upheld and the Ombudsman’s intervention would not lead to a different outcome. The complainant’s appeal to the First-tier Tribunal (Special Educational Needs and Disability) places the remaining substantive matters outside our jurisdiction.

The complaint

1. The complainant, Ms X, complains that the Council was at fault in the process of amending her daughter’s Education Health and Care plan, thereby delaying the provision of an appropriate school place for her.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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 investigation would not lead to a different outcome, or there is another body better placed to consider this complaint (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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.
6. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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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. Ms X’s daughter has special educational needs and a EHC plan. Ms X complains that the process of amending the EHC plan for phase transfer was subject to delay and characterised by a failure to communicate.
10. Ms X says the version of the EHC plan used in consultations did not reflect her daughter’s needs and the Council failed to ensure the consultations were carried out promptly. As a result, she engaged legal representation to compel the council to issue the final amended EHC Plan, which she subsequently appealed. She is also critical of the Council’s actions in the course of the consideration of her appeal by the SEND Tribunal.
11. Ms X contends that the Council’s failure to issue the EHC plan within the statutory timescale forced her to arrange a temporary placement for her daughter. She says the Council did not assist and the result has been that her daughter’s transition to an appropriate placement was both delayed and made more distressing than need have been the case.
12. We will not investigate Ms X’s complaint. The Ombudsman’s jurisdiction is set out in law and prevents us from considering matters relating to the content of an EHC plan. This is because this is a matter which carries the right of appeal to the SEND Tribunal. Ms X has used this appeal right and this places the EHC Plan’s content and matters which were material to it, such as the basis on which consultations were made, outside the Ombudsman’s jurisdiction. There is no discretion available to us.
13. Neither can we consider the Council’s actions in the course of the appeal process. This includes anything a complainant could have raised with the Tribunal at any stage of the appeal, or which the Tribunal has considered on its own initiative, or which could have been a part of the Tribunal’s deliberations in resolving the appeal. (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207).
14. These restrictions apply from the point at which the EHC plan was issued to the date the appeal was decided or withdrawn. We cannot consider the provision made for Ms X’s child during the same period as this was clearly related to the matters before the Tribunal.
15. The only matter relating to the EHC plan which falls to us to consider is the delay in issuing the amended EHC plan. The Council accepts that it was at fault and has apologised. It has offered symbolic payments totalling £800. The Ombudsman will not normally intervene where a complaint has been upheld before the matter comes to us, as is the case here. It is not a good use of public money to do so. In this case, the remedy offered is broadly in line with what the Ombudsman would be likely to recommend. Our intervention would not lead to a different outcome and is not therefore warranted.
16. In addition, Ms X complains that the Council was at fault in its response to a Subject Access Request. She may bring this matter to the attention of the Information Commissioner’s Office, which is better placed than the Ombudsman to consider it.

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Final decision

17. We will not investigate Ms X’s complaint because our intervention would not lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman