Summary: We cannot investigate Mrs X’s complaint about the content of an Education Health and Care Plan and the process the Council used to create it. Mrs X has appealed to the Tribunal.

The complaint

1. Mrs X says the Council used the wrong process to produce an amended Education Health and Care Plan (EHC Plan) for her child, B. She says this caused the EHC Plan to not meet B’s needs and she is spending money appealing to the Tribunal.

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The Ombudsman’s role and powers

2. 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).

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How I considered this complaint

3. I considered information provided by Mrs X which included the Council’s reply to her complaint.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. The council must review and amend an EHC Plan in enough time before to a child or young person moved between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases. The key transfers includes primary school to secondary school.

Mrs X’s complaint events

6. Mrs X says B has an EHC Plan and is due to move to secondary school in September 2025. She says the Council used information from B’s April 2024 annual review to amend the EHC Plan. She says this is wrong. She says the Council should have carried out a new review and assessed B’s needs again.
7. The Council issued an amended final EHC Plan which names School Y. Mrs X has appealed the EHC Plan to the Tribunal. She says if the Council had used the right process the appeal would have been unnecessary. She says she has incurred legal costs.

Analysis

8. 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). This means we cannot investigate the wording of the EHC Plan. We also cannot investigate why the Council worded the EHC Plan as it did and this includes the process it used to create the EHC Plan.
9. Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the Tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10) 

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Final decision

10. We cannot investigate Mrs X’s complaint because we cannot investigate events which are connected to a Tribunal appeal.

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Investigator's decision on behalf of the Ombudsman