Summary: We will not investigate Mrs X’s complaint about the Council’s handling of her child’s Education, Health and Care Plan. This is because she has appealed the substantive issue about the Council’s decision to name a school she considers unsuitable. The Council has apologised to Mrs X for delays and poor communication and it is unlikely investigation would achieve anything more for her.

The complaint

1. Mrs X complains about the Council’s handling of her child’s Education, Health and Care (EHC) Plan. She says the Council named an unsuitable school and failed to provide interim provision for her child while she appealed this decision. She also complains about delays and poor communication throughout the process.
2. She says the matter has caused her distress and has left her child without a suitable school.

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The Ombudsman’s role and powers

3. 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:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• there is no worthwhile outcome achievable by our investigation.

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

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

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How I considered this complaint

7. I considered information provided by Mrs X.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Mrs X has appealed the Council’s decision about the school named in the EHC Plan. She has also raised this point in her complaint, along with concerns about how the Council made its decision. However, as set out at paragraph 5, we cannot investigate a complaint if someone has appealed to a tribunal about the same matter. This is because it would overlap with the role of the tribunal. Therefore, I cannot investigate this part of Mrs X’s complaint.
10. Councils only have a duty to secure the provision set out in the EHC Plan. They do not have to arrange additional or alternative provision simply because a parent disagrees with the Plan and is appealing. There is not enough evidence of fault by the Council on this issue, so we will not investigate this part of Mrs X’s complaint.

Delays and poor communication

11. I acknowledge there were some delays in the Council issuing the final EHC Plan. I also acknowledge there were instances of poor communication, which caused Mrs X frustration. However, I do not consider the delays or the communication issues to have caused Mrs X significant enough injustice to justify us investigating.
12. The Council has in any event acknowledged the delays and issues with communication and has apologised to Mrs X for this. I consider the Council’s response to be appropriate and proportionate to the level of injustice caused. Further investigation by us is unlikely to achieve anything more.

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Final decision

13. We will not investigate Mrs X’s complaint because she has appealed the substantive part of her complaint and it is unlikely investigation by us would achieve anything more for her on the other part of her complaint.

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Investigator's decision on behalf of the Ombudsman