Summary: We will not investigate this complaint about the annual review of an Education, Health and Care plan. The Council has provided a reasonable remedy to address the delay in issuing a decision to maintain or amend the plan. The complainant has appealed to a tribunal which prevents the Ombudsman from investigating the rest of the complaints.

The complaint

1. Ms X complained about the way the Council carried out her son’s annual review. She says the Council did not:
• Carry out the review within the statutory timescales,
• Consider the evidence presented when deciding not to amend the plan, and
• Delayed considering whether Education Other than at School would be more appropriate.
2. She says the uncertainty has caused her son’s mental health to worsen.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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.

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

5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. 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…”.

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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 carried out an annual review for Ms X’s son, C. He was struggling at school, and Ms X hoped the Council would amend the plan and arrange for Education Otherwise than At School (EOTAS). The Council decided to maintain the plan and Ms X has appealed this decision.
11. She complained the Council had taken 12 weeks to decide to amend or maintain the plan, it hadn’t considered evidence during the annual review, and the Council had delayed considering EOTAS for C.
12. We will not investigate Ms X’s complaints about the evidence considered during the annual review and the Council’s delay in considering EOTAS. These complaints either have been raised or are too closely related to issues raised at tribunal. Ms X has raised an appeal asking the tribunal to consider whether C’s Education, Health and Care plan should be amended and if EOTAS would be the most appropriate setting.
13. We will not investigate Ms X’s complaint about the delay in the annual review. The Council has accepted fault and offered her a remedy to address this and the delays in the complaint’s correspondence. This is in line with our remedies guidance and any remaining injustice would be insufficient to warrant further investigation.

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Final decision

14. We will not investigate Ms X’s complaint because she has appealed to a tribunal, and the law says we cannot investigate. We will not investigate the remaining complaints because the Council has already offered a reasonable remedy.

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Investigator's decision on behalf of the Ombudsman