Summary: We cannot investigate Miss X’s complaint about whether her child’s Education Health and Care Plan meets their needs. We cannot investigate matters which are subject to, or not separable from, a Tribunal appeal.

The complaint

1. Miss X says the Council has failed to provide the education and support set out in her child, B’s, Education Health and Care Plan (EHC Plan).

Back to top

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)

Back to top

How I considered this complaint

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

Back to top

My assessment

5. Miss X says there was an annual review of B’s EHC Plan held in November 2024. She says at this the school setting B attends, said it needed more funding to carry out the provision set out in the EHC Plan. She says the Council failed to resolve this and B is not getting the support they need.
6. The Council in reply to Miss X’s complaint said it had agreed an increase in funding. It said the school had not said it could not meet needs. It said it had information from the school detailing how it was meeting the EHC Plan. It accepts not all the provision had happened, but it said this was because the school needed to balance the provision.
7. The Council says Miss X has appealed the EHC Plan content to the Tribunal.

Analysis

8. The courts have settled that if someone appeals to the Tribunal, the law says we cannot investigate any matter which is part of, 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)
9. This means we cannot investigate a lack of special educational provision, or alternative educational provision when we decide the reason for this is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan.
10. The period we cannot investigate is:

Starts from the date the appealable decision is made and given to the parents or young person and

if the parent or young person goes on to appeal then ends when the Tribunal comes to its decision,

or ends on the date the appeal is withdrawn or conceded.

11. We also would not usually look at the period while any changes to the EHC Plan are finalised following the Tribunal appeal. So long as the Council follows the statutory timescales to make those amendments.
12. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to show suitable oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least each year during the EHC review process; and 
• quickly investigate and act on complaints or concerns the provision is not in place. 

13. The Council’s stage two reply suggests it has done this. Therefore, we are unlikely to find any section 42 failure from November 2024 until the stage two reply.

Back to top

Final decision

14. We cannot investigate Miss X’s complaint about whether the EHC Plan meets her child’s needs. This is because we cannot investigate matters which are part of, or not separable from, a Tribunal appeal. And we are unlikely to find fault in the Council’s decision that it is providing the EHC Plan.

Back to top

Investigator's decision on behalf of the Ombudsman