Summary: We cannot investigate Miss X’s complaint about either the provision or the placement set out in her child’s Education, Health, and Care Plan. Miss X has appealed to the Tribunal about this matter and therefore the law says we cannot investigate. Additionally, we will not investigate Miss X’s complaint about delays in the Education, Health and Care Plan review process. The Council have provided an appropriate remedy for the injustice caused and there are no wider public interest issues to justify our investigation.

The complaint

1. Miss X complained the Council delayed issuing her child’s (Y) updated Education, Health and Care (EHC) Plan following an emergency review meeting. Miss X also complained the Council continued to name an unsuitable setting in the final plan and did not secure Y’s special education provision (SEP).
2. Miss X said this led to a loss of education for Y, as well as causing distress for her and the family.

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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 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)
5. 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.
6. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)

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How I considered this complaint

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Miss X complained about delays caused by the Council, following Y’s EHC Plan review meeting in July 2024. She said the setting named in Y’s plan was unsuitable and therefore Y had not received suitable education, including their SEP, other than provisions Miss X arranged privately.
10. Following the review meeting, the Council did not issue Y’s final EHC Plan until January 2025 and therefore had missed the statutory timeframe for issuing this within 12 weeks.
11. The Council responded to Miss X’s complaint providing apologies and a symbolic payment of £550 for the delays and to recognise the distress caused to Miss X and Y. I consider this to be appropriate and in line with our guidance on remedies. Therefore, we will not investigate.
12. Miss X also complained about the setting named in Y’s EHC Plan being unsuitable. Miss X said this led to Y being out of education and had not obtained their SEP, which was due. Miss X said she had paid for external provisions to compensate for this.
13. The Council told Miss X it believed the named setting to be suitable, was available to Y and able to meet Y’s needs including the SEP due in their EHC Plan.
14. 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.
15. 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.
16. Miss X has now appealed to the SEND Tribunal about this matter and therefore the law says we cannot investigate, as outlined in paragraph four.

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Final decision

17. We cannot investigate Miss X’s complaint about the Council’s decision relating to an EHC Plan because she has appealed that decision and the law says we cannot investigate. Also, we will not investigate Miss X’s complaint about EHC delays because the Council have provided an appropriate remedy for her injustice, and there are no wider public interest issues to justify our investigation.

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Investigator's decision on behalf of the Ombudsman