Summary: We cannot investigate this complaint about the Council’s handling of an Education, Health, and Care Plan. This is because most of the matters relate to the content of the plan and school placement, which are subject to an ongoing tribunal appeal. These matters are therefore outside our jurisdiction. Nor will we look at the Council’s communication about this, because it acknowledged this was poor and has remedied the injustice caused by its poor communication.

The complaint

1. X complained about the Council’s actions in relation to her child (Y’s) Education, Health, and Care (EHC) Plan. She said this included:
1. Failure to secure a suitable school placement for her child before the appeal hearing
2. Schools being consulted based on outdated information within the EHC plan
3. Failure to update and amend the EHC plan to reflect current needs
4. Failed to deliver the psychological intervention set out in the EHC plan
5. Failure to respond to her emails and calls about her child’s EHC plan causing distress and delay

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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 further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. 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)
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. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)

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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. 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. 
9. 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.
10. This means that if a child or young person is not attending school, and we decide the reason for non-attendance 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. The same restrictions apply where someone had a right of appeal to the Tribunal, and it was reasonable for them to have used that right.
11. The period we cannot investigate starts from the date the appealable decision is made and given to the parents. 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.
12. The matters relating to complaints a) – d) relate to the content of Y’s EHC plan including school placement, provision, and Section F (special education provision) delivery. X appealed these issues to the Tribunal. Because of the law I have highlighted at paragraph five, they are outside our jurisdiction.
13. I note X did not appeal the specific issue relating to Y’s placement until some months after her initial appeal application, but the evidence, on balance, suggests she was unhappy with the school being able to provide Y’s provision. Therefore, it would have been reasonable to expect her to have appealed this aspect when she first had an appeal right.
14. Regarding complaint e), the Council accepted there were delays and failures in communication, including not responding to e-mails. It upheld this part of the complaint at stage one and apologised. At stage two, the Council reiterated its acceptance of fault and offered a financial remedy of £500 for frustration and distress. I consider this a suitable remedy, and further investigation would not achieve a different outcome.

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Final decision

15. We cannot investigate X’s complaint because most of the matters concerns the content of the EHC plan and school placement, which are subject to tribunal appeal and therefore outside our jurisdiction. Nor will we look at the remaining aspects because the Council acknowledged, apologised, offered a suitable financial remedy, and further investigation by us would not lead to a different outcome

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Investigator's decision on behalf of the Ombudsman