Summary: We will not investigate this complaint that the Council’s actions amount to a failure to secure the provision set out in an Education Health and Care plan. This is because the specific provision was not in the plan until October 2024 so the Council had no duty to make or fund it, and from that point it would have been reasonable for the complainant to use her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) to challenge the basis on which it was included.

The complaint

1. The complainant, Mrs X, complains that the Council has failed to secure and fund the provision set out in her daughter’s Education Health and Care (EHC) plan.

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The Ombudsman’s role and powers

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

6. I considered information provided by the complainant.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mrs X’s daughter has an EHC plan. Mrs X says that the school she attended before September 2024 funded a programme of specific provision. She complains that the Council has now decided to refuse to fund the provision. Although it is specified in Section F of the EHC plan issued in October 2024, this is on the basis that it will be funded by the pupil’s parents.
9. Mrs X complains that the Council was at fault in failing to communicate its position on the provision to her before the amended EHC plan was issued in final form. She contends that it is unlawful for the Council to include the provision in the EHC plan and decline to fund it, and argues that this amounts to a failure to secure the provision. She says she has been compelled to pay for the provision herself and wants the Council to reimburse her. She also wants it to commit to funding the provision in future and to compensate her for the distress and uncertainty the matter has caused.
10. The Council has accepted that it was at fault in how it communicated with Mrs X and has offered her a symbolic payment in recognition of this. But it has not upheld her complaint about the provision or the wording of the EHC plan. It has pointed out that she had the right to appeal to the Tribunal against the content of Section F. Mrs X says she should not have to use this right, given that she regards the content as unlawful.
11. The Ombudsman will not investigate Mrs X’s complaint. The provision was not included in the EHC plan in place before October 2024. Therefore, the Council was not obliged to make it, whether or not the school had decided to fund it.
12. Whether the Council was entitled to word Section F of the EHC plan issued in October 2024 in the way it has, and whether it was required to fund the provisions set out, are matters which would have fallen to the Tribunal to consider and determine, if Mrs X had appealed. Where appeal rights exist, the Ombudsman normally expects them to be used. It was for Mrs X to decide whether to appeal, but the Tribunal was the appropriate forum in which to challenge the EHC plan’s content. That being the case, it would have been reasonable for her to do so and the Ombudsman cannot intervene.

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Final decision

13. We will not investigate Mrs X’s complaint because it concerns matters about which it would have been reasonable for her to appeal to the Tribunal, and there is no evidence of fault in the Council not funding provision which was not included in an EHC Plan before the appeal right arose.

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Investigator's decision on behalf of the Ombudsman