Summary: We will not investigate this complaint about delay and failure in communication on the Council’s part. The fault the complainant has identified is not separable from the process of amending his daughter’s Education Health and Care plan and, as such, does not fall to be investigated by the Ombudsman.

The complaint

1. The complainant, Mr X, complains that the Council has failed to communicate appropriately and take action without unnecessary delay regarding his daughter’s education.

Back to top

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 effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
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. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.

Back to top

How I considered this complaint

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

Back to top

My assessment

9. Mr X’s daughter has special educational needs and an Education Health and Care plan. Mr X complains that the Council was at fault in the course of the process of assessing his daughter’s needs and identifying an appropriate placement for transfer to secondary education. Specifically, he complains that the Council failed to communicate properly and took too long to progress matters. He says that, as a result, his family was caused avoidable distress and uncertainty.
10. The Ombudsman will not investigate Mr X’s complaint. The correspondence shows that the alleged failures in communication were in the context of identifying a school place to name in Mr X’s daughter’s amended EHC plan. As such, they are not separable from the process of amending the EHC plan.
11. The courts have said that the Ombudsman cannot investigate such matters where an appeal about the content of an EHC plan has been lodged. The same restriction applies where appeal rights exist and it would have been reasonable to use them. As the fault Mr X identifies is not separable from the production and content of the EHC plan, the Ombudsman cannot investigate it.
12. The exception to this restriction is delay in the process, which is a matter the Ombudsman can consider. Councils must issue amended EHC plans in final form within a specific timescale and, where a pupil is approaching transfer between phases of education, by a specific date.
13. The correspondence shows that the Council failed to issue the EHC plan by the required date. However, the length of the delay was not so significant as to warrant investigation by the Ombudsman. The Council’s apology was an appropriate remedy for this procedural fault.

Back to top

Final decision

14. We will not investigate Mr X’s complaint because it concerns matters which are not separable from the process of amending his daughter’s EHC plan.

Back to top

Investigator's decision on behalf of the Ombudsman