Summary: We will not investigate Mr X’s complaint about educational support. We cannot investigate whether the support level should have been higher as this was subject to a Tribunal appeal. We are unlikely to gain a significantly different outcome than the Council’s offered refund.

The complaint

1. Mr X says the Council should refund him for the costs of a speech and language therapist ( SALT) he employed for his child D.

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The Ombudsman’s role and powers

2. 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:

• we could not add to any previous investigation by the organisation; or
• further investigation would not lead to a different outcome; or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. 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

4. I considered information provided by Mr X which included the Council’s replies to him.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. In March 2023 the Council published an Education Health and Care Plan (EHC Plan) for D. It said D should receive 12 sessions per year of 45-60 minutes of SALT. Mr X says this has not happened. He says he had to employ a private SALT. He says that SALT provided 36 session per year as he says this followed professionals advice.
7. Mr X appealed the EHC Plan to the Tribunal. It decided the case in February 2025. Its accepted it ordered the EHC Plan be amended to provide for 36 sessions of 60 minutes per year. The Council says it will now ensure this happens.
8. Mr X asked the Council to refund him the costs of the private SALT he had employed from 2023 to 2025. The Council in reply to his complaint, accepted it failed to provide the SALT. It offered to refund 12 sessions per year until February 2025. It says the EHCP during that time only required 12 sessions. Mr X disagrees. He says the Tribunal’s order and comments mean D should always have been provided with 36 sessions.

Background law

9. A child or young person with special educational needs may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
10. The Council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
11. 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)
12. This means that if a child is not receiving the support they want and we decide the reason for lack of support 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, we cannot investigate a lack of special educational provision, or alternative educational provision.
13. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
14. 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). 

Analysis

15. We cannot investigate what provision D should have received from the date the EHC Plan was issued until the Tribunal decision. We cannot consider if D should have received 36 sessions or 12.
16. We can only consider whether the Council provided what the EHC Plan issued in March 2023 required. In this case the s42 duty means the Council only had to provide 12 sessions. The Council has offered refund for those sessions. Our investigation is unlikely to achieve more.

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Final decision

17. We will not investigate Mr X’s complaint because we cannot investigate whether D should have received 36 hours rather than 12 hours during a Tribunal appeal. We are unlikely to achieve more than the Council has offered for its failures to provide the 12 hours support.

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Investigator's decision on behalf of the Ombudsman