Summary: We cannot investigate most of Mrs X’s complaint about her child’s Education, Health and Care Plan because she appealed to the SEND Tribunal. We will not investigate part of her complaint because the Information Commissioner’s Office is better suited. The Council apologised for its poor communication, so an investigation by the Ombudsman into that matter is unlikely to achieve anything further.

The complaint

1. Mrs X complained the Council failed to:
1. secure the content of her child, Y’s, Education, Health and Care (EHC) Plan;
2. name a suitable school in section I of Y’s EHC Plan and failed to consult with appropriate special schools;
3. respond to her Subject Access Request (SAR) in a timely manner; and
4. communicate with her effectively.
2. Mrs X said the matter caused her frustration and distress. She said it impacted Y’s educational attainment.

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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. 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.
5. 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)
6. 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)
7. 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
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

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

8. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection or data processing including Subject Access Requests (SAR). However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

9. I considered information provided by the complainant.
10. I considered the Ombudsman’s Assessment Code.

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My assessment

Content of Y’s EHC Plan & school consultations

11. We cannot investigate Mrs X’s complaints that the Council named an unsuitable school in section I of Y’s EHC Plan, its failure to consult with special schools, or her complaint that Y is not receiving the full content of their EHC Plan.
12. Mrs X appealed the content of the EHC Plan to the SEND Tribunal, including the named school. The Ombudsman cannot investigate the steps the Council took in making the EHC Plan including any consultations or its decision to name a mainstream school in section I. These matters are too closely linked to the issues now being decided by the SEND Tribunal.
13. The reason Y is not receiving the full content of their EHC Plan is too closely related to the matter Mrs X appealed to the Tribunal (the named school in section I and its suitability). Therefore, we cannot investigate that matter.

Subject Access Request

14. Mrs X complained to the Ombudsman that the Council had not responded promptly to her Subject Access Request (SAR).
15. Parliament created the Information Commissioner’s Office to consider complaints of this type. The ICO is better suited to consider Mrs X’s complaint about her SAR and so we will not investigate this matter.

Poor communication

16. In its complaint response the Council apologised for the frustration it caused by failing to maintain consistent communication with Mrs X.
17. An investigation by the Ombudsman is unlikely to achieve any additional outcome. Therefore, we will not investigate.

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Final decision

18. We cannot investigate most of Mrs X’s complaint because she appealed to a Tribunal, and the law says we cannot investigate. We will not investigate the remainder because the ICO is better suited, and because an investigation is unlikely to achieve a different outcome.

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Investigator's decision on behalf of the Ombudsman