Summary: We will not investigate this complaint about the Council’s handling of the Education, Health and Care Plan process for the complainant’s child. It is unlikely our investigation would achieve a worthwhile outcome. We will not investigate the complaint about the Council’s complaint handling as a stand-alone issue.

The complaint

1. Miss X complained the Council failed to follow the correct process when reviewing and amending her daughter’s Education, Health and Care (EHC) plan. She also complained it failed to deal with her complaint quickly.
2. She says this has affected her daughter’s education and caused her time and stress.

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The Ombudsman’s role and powers

3. 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 fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. 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…”.
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.

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How I considered this complaint

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

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My assessment

8. The Council reviewed Miss X’s daughter's EHC plan in 2024. Miss X complained it did not follow its process and arrange for a panel to review the plan. She feels this led to the Council naming an unsuitable school in the EHC plan. She raised a further complaint about the way the Council handled her complaint and the delays caused.
9. The Council accepted the plan had not gone to panel and that this was its standard practice. It explained this was not a legal requirement.
10. Miss X has also appealed to the tribunal about the content of the EHC plan including the school named in section I.
11. We will not investigate Ms X’s complaint. Miss X says the Council’s failure to put the EHC plan before the panel left her daughter in an unsuitable school. But we could never say that if the Council had reviewed the plan at panel the outcome would have been different. An investigation is not therefore appropriate.
12. Further, Miss X’s view that the school named is not suitable carries the right of appeal to the Tribunal. Where appeal rights exist, the Ombudsman normally expects them to be used, and Miss X has used this right. The matters about which Miss X complains are not separable from the appealable decision.
13. I understand Miss X’s concerns about the Council’s handling of her complaint. But we will not normally look at complaint handling as a stand-alone issue when we are not looking at the issue which led to the original complaint. Any fault in complaint handling will not normally lead to an injustice great enough to warrant our involvement.

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Final decision

14. We will not investigate Miss X’s complaint because there is no worthwhile achievable outcome by our investigation.

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Investigator's decision on behalf of the Ombudsman