Summary: We will not investigate Miss X’s complaint. We are unlikely to achieve a significantly different remedy for the Council’s delay in issuing an Education Health and Care Plan. We cannot investigate the education and support provided by a school to a pupil. We cannot investigate the education provided during a Tribunal appeal as it is connected to that appeal.

The complaint

1. Miss X says the Council delayed in issuing an Education Health and Care Plan (EHC Plan) and failed to provide education her child, B, needed.

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The Ombudsman’s role and powers

2. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
3. 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.
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. 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:

• we could not add to any previous investigation by the organisation; or
• further investigation would not 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

6. I considered information provided by Miss X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Miss X asked the Council to assess her child, B, for an EHC Plan in August 2023. It issued the final EHC Plan in November 2024. It took longer than the statutory timescale of 20 weeks. Miss X complained to the Council. It replied in August 2024. It said it would pay her £100 per month for the delay outside the timescale once it issued the EHC Plan. It paid her £1064 in November 2024. This is in line with our usual recommendation, and it is unlikely our investigation could achieve significantly more.
9. Miss X says the Council failed to provide B with an education meanwhile. She says B was on a school roll and attended the school until November 2024. She says the school struggled to cope with B’s needs and B was not getting the support they needed. We cannot investigate how a school supports and provides education to a pupil.
10. Miss X says B has been out of school since November 2024. She appealed the EHC Plan to the Tribunal. She says the Council has now agreed with her the assigned school is not suitable and has agreed a specialist setting.
11. Once a Council issues an EHC Plan, it has a duty to ensure it is provided. The courts have established that when someone appeals to the Tribunal, 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)
12. This means that if a child is not attending school, and we decide the absence is linked to, or is a consequence of, a disagreement about the special educational provision or placement in the EHC Plan, we cannot investigate a lack of educational provision and support, during the Appeal period.
13. This period starts from the date the Council gave the appealable decision to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.

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Final decision

14. We will not investigate Miss X’s complaint because we are unlikely to achieve a significantly different remedy for the Council’s delay in issuing an EHC Plan. We cannot investigate the education and support provided by a school to a pupil. We cannot investigate the Council’s duty to provide the support and education set out in an EHC Plan, during the Tribunal appeal as it is connected to that appeal.

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Investigator's decision on behalf of the Ombudsman