Summary: We cannot investigate Mrs X’s complaint about the content of her child’s Education, Health and Care Plan. This is because Mrs X appealed to the SEND Tribunal. We will not investigate Mrs X’s complaint about delays in the Education, Health and Care process because the injustice is not significant enough to warrant an investigation. We will not investigate the Council’s poor communication because the Council apologised, and an investigation is unlikely to achieve any additional outcome.

The complaint

1. Mrs X complained the Council:
1. failed to adhere to the statutory timescales regarding her child, Y’s, Education, Health and Care (EHC) Plan;
2. failed to obtain or include relevant information including Speech and Language Therapy (SaLT) and Augmentative and Alternative Communication (AAC); and
3. failed to name a school in section I of Y’s EHC Plan.
2. Mrs X said the matter caused her distress, frustration, and uncertainty.

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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 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.
5. 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)
6. 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)
7. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin).
8. 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
• 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

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

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My assessment

Delays in the EHC process

11. Mrs X said she asked the Council to conduct an EHC needs assessment of Y in early May 2024. The Council made a final EHC Plan for Y in late October 2024.
12. To comply with the SEND regulations the Council should have made the final EHC Plan within 20 weeks. The Council made the final EHC Plan approximately 25 weeks after Mrs X’s request.
13. Although this is a delay of five weeks, any injustice caused by this delay is not significant enough to warrant an investigation by the Ombudsman, and so we will not investigate this complaint.

Content of the EHC Plan

14. We cannot investigate Mrs X’s complaints about the content of the EHC Plan. This includes:
1. Mrs X’s view about SaLT reports including the private SaLT report she commissioned and wishes to have reimbursed;
2. any “missing” provision not included in the EHC Plan including AAC; or
3. the named school (or lack of named school) in section I of the EHC Plan.
15. This is because Mrs X used her right to appeal the content of the EHC Plan to the SEND Tribunal. The law says the Ombudsman cannot investigate any matter which is part of, connected to, or could have been part of an appeal to the Tribunal.
16. Because Mrs X appealed the content of the EHC Plan to the Tribunal, the law says we cannot now investigate the steps the Council took in making the EHC Plan or the content of the EHC Plan.

Poor communication

17. We will not investigate Mrs X’s complaint about the Council’s poor communication.
18. In its correspondence with Mrs X the Council apologised for some of the delays in its responses. It also apologised for the impact of the issues Mrs X complained about on her family. An investigation into these matters is unlikely to achieve anything further, and so we will not investigate.

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Final decision

19. We cannot investigate most of Mrs X’s complaints because she appealed to a Tribunal. We will not investigate the remainder either because the injustice is not significant enough to warrant our involvement, or an investigation would not achieve any additional outcome.

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Investigator's decision on behalf of the Ombudsman