Summary: We cannot investigate this complaint about the review of an Education, Health, and Care Plan before transition to secondary school. Mrs X appealed to the First-tier Tribunal (Special Educational Needs and Disability) and the issues she complained about were connected to the subject of this appeal.

The complaint

1. Mrs X complains the Council failed to properly review her child D’s Education, Health, and Care (EHC) Plan in the 2024/2025 school year, ahead D’s transition to secondary school. Mrs X says the Council:
• issued a final EHC Plan prematurely, without consideration of Mrs X’s comments;
• used an outdated version of the EHC Plan when consulting secondary schools to be named in the Plan;
• gave inconsistent and misleading information to the family about what schools it could or would name in the EHC Plan; and
• did not name a suitable secondary school placement in the EHC Plan before the statutory deadline required for transition of an EHC Plan between school stages.
2. Because of this Mrs X says the Council left D without a suitable secondary school place. She says this caused distress to her and D.
3. Mrs X wants the Council to:
• amend D’s EHC Plan to ensure it names a suitable secondary school placement and supports D to transition between school stages;
• apologise and provide a financial remedy for the distress and harm caused;
• repay her the cost of a clinical psychologist report she paid for privately that it did not include in the EHC Plan; and
• hold relevant staff accountable for their actions.

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The Ombudsman’s role and powers

4. 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)
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.
6. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this.
7. 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)

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How I considered this complaint

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

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My assessment

10. The Council issued an EHC Plan for D without naming a specific secondary school placement, as it had not yet found one. Where a council fails to name a specific placement, there is a right of appeal to the SEND Tribunal. Mrs X used this right of appeal. Therefore, we cannot consider a complaint about failure to name a secondary school placement, or any matters connected to this.
11. This means we cannot investigate issues with the review process which led to the final Plan Mrs X has appealed about. This includes any failure to consider Mrs X’s comments, and any issues with how the Council consulted schools or decided about whether schools were suitable.

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Final decision

12. We cannot investigate Mrs X’s complaint because she appealed to the First-tier Tribunal (Special Educational Needs and Disability) and the issues she complained about were connected to the subject of the appeal.

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Investigator's decision on behalf of the Ombudsman