Summary: We will not investigate this complaint about how the Council assessed for an Education Health and Care Plan. It is reasonable for Ms X to appeal to the Tribunal if she disagrees with the content or provision specified in the Plan.

The complaint

1. Ms X complained about how the Council completed an Education Health and Care Plan (EHC Plan) assessment, for her daughter, Y. She said the Council:
1. Failed to assess Y’s sensory needs as part of the EHCP process.
2. Did not make provision for Y’s emotional support dog in the EHC Plan.
3. Included inaccurate information in the EHC Plan about Y’s autism.
4. Included inaccurate information from Council commissioned medical reports in the EHC Plan.
5. Did not consult with her about possible schools she wanted Y to attend.
6. Did not include information from Y’s previous school about her experiences.
7. Had not arranged suitable educational provision for Y that meant she had to fund this herself.
8. Inaccurately spelt names in the EHC Plan.
2. She also said it shared personal information about her without her consent to a school. She said the Council had refused to consider her complaint because she had started mediation.

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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. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (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 Tribunal in this decision statement.
6. 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:
• any injustice is not significant enough to justify our involvement, or
• there is another body better placed to consider the complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

7. 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

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

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My assessment

10. Ms X’s complaints are about flaws in the Council’s assessment process and its failure to consult with her preferred school. Any flaws in the assessment process would impact on the content of the final EHC Plan. We cannot change the content of the EHC Plan, only the Tribunal can do this. Therefore, we will not investigate complaints a) – f). If Ms X is unhappy with the description of Y’s needs (Section B), or the type of provision Y needs (Section F) it would be reasonable for her to appeal to the SEND Tribunal.
11. The EHC Plan states that Ms X has chosen to electively home educate Y; this is specified in Section I of the EHC Plan. Where a parent has elected to home educate their child, the Council is under no obligation to provide the provision set out in the EHC Plan, as long as it is satisfied with the arrangements Ms X has made. Therefore, we will not investigate complaint g). If Ms X disagrees with the named placement (Section I) of the EHC Plan, it is reasonable for her to appeal to the SEND Tribunal.
12. We will not investigate Ms X’s complaint the Council shared personal information about her with a school. That is because any complaints about information breaches are best dealt with by the Information Commissioner’s Office (ICO). The ICO can make recommendations to organisations about actions that might need to take in relation to data breaches. Therefore, it is appropriate for Ms X to complain to the ICO.

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Final decision

13. We will not investigate Ms X’s complaint because it would be reasonable for her to appeal to the Tribunal if she is unhappy following mediation.

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Investigator's decision on behalf of the Ombudsman