Summary: We cannot investigate Mrs X’s complaint about the Council’s actions following its refusal to amend an Education Health and Care Plan. This is because she has used her right of appeal to a tribunal. Other issues raised have not caused Mrs X a significant enough injustice to warrant investigation.

The complaint

1. Mrs X complains about how the Council managed the annual review of her child’s Education Health and Care (EHC) Plan. Mrs X says the Council delayed arranging mediation and failed to respond to her calls and emails.

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The Ombudsman’s role and powers

2. 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. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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 First-tier Tribunal (Special Educational Needs and Disability - SEND) 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

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

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My assessment

7. The Council carried out an annual review of Mrs X’s child’s EHC Plan. Mrs X wanted the Council to make amendments, but the Council refused and decided to maintain the EHC Plan. Mrs X appealed this decision to the SEND Tribunal.
8. Mrs X complained about how the Council dealt with matters whilst the appeal was ongoing. She says the Council delayed meeting with her to mediate then delayed arranging a new Educational Psychologist assessment.
9. I cannot investigate Mrs X’s complaint because she has used her right to appeal to the SEND Tribunal. The law says we cannot investigate the decision not to amend an EHC Plan when an appeal has been made about that decision. The courts have established that if someone has appealed 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. I consider that this restriction applies in Mrs X’s case.
10. Mrs X has also complained that the Council’s communication has been poor following the Tribunal hearing. Whilst I acknowledge that this will have caused Mrs X a certain level of frustration, I do not consider that this amounts to a significant enough injustice to warrant investigation.

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Final decision

11. We cannot investigate Mrs X’s complaint because she has used her right of appeal to the SEND Tribunal and other matters have not caused her a significant enough injustice.

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Investigator's decision on behalf of the Ombudsman