Summary: We cannot investigate this complaint the Council failed to provide educational provision after it decided to end an Education Health and Care Plan. The complaint is not separable from matters that have been appealed to the Tribunal.

The complaint

1. Mrs X complained the Council had failed to provide the education specified in her son’s, Mr Y’s Education Health and Care Plan (EHC Plan). She said the named provider specified in his EHC Plan could not meet his needs, nor could any colleges. Mrs X said Mr Y attended a day centre as part of his adult social care provision. She said this was providing the life skills specified in his EHC Plan but the Council would not recognise it as educational provision. She said Mr Y had to make a client contribution for that support. Mrs X wants the Council to reimburse Mr Y those contributions.

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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 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)
4. 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)
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 Tribunal in this decision statement.

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How I considered this complaint

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

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My assessment

8. The Council reviewed Mr Y’s EHC Plan at the start of 2024. At the time, Mr Y was not attending the educational provision specified in the EHC Plan. Mrs X asked the Council to increase provision at the day centre he attended instead. The Council assessed this as being an adult social care need rather than educational. It decided to end Mr Y’s EHC Plan. Mrs X appealed that decision.
9. Following a decision to cease an EHC Plan, councils must maintain the EHC Plan until any registered appeal is concluded. In its complaint response, the Council confirmed the provider specified in the EHC Plan remained available to Mr Y. However, it accepted Mr Y no-longer wished to attend that placement and said it had offered to consult with colleges. It did not agree to fund the day centre Mr Y was attending. It said that was because it was not an education provider as recognised by the Department of Education.
10. We cannot investigate Mrs X’s complaint the Council has not provided Mr Y the education specified in his EHC Plan. That is because the Council has offered provision, but Mrs X disagrees this can meet Mr Y’s needs. She wants the Council to provide the day centre. The Council decided to end Mr Y’s EHC Plan, because it did not consider the day centre an educational need. Therefore, Mrs X’s complaint is not separable to the matters under appeal.

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Final decision

11. We will not investigate Mrs X’s complaint because it is not separable from the matters under appeal.

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Investigator's decision on behalf of the Ombudsman