Summary: We will not investigate this complaint about how the Council handled the education, health and care plan process because further investigation would not lead to a different outcome.

The complaint

1. Mrs X complains about the way the Council handled her son’s Education, Health and Care (EHC) Plan process. Specifically it:
• Provided a temporary personal budget which caused uncertainty
• Failed to increase the personal budget resulting in provision being underfunded
• Commissioned an assessment from an Educational Psychologist (EP) without notifying her or gaining her consent
• Failed to train council staff on Pathological Demand Avoidance (PDA)
• Merged its response to her son’s complaint with her daughter’s complaint; and
• Restricted the amount of contact she could have with the Council to one email per week.

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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. 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
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

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

4. 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)
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…”.
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 and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

Personal budget

9. The Council has acknowledged there were delays longer than expected when agreeing the personal budget package. With regards to the ‘temporary budget’ it provided to Mrs X, it said that although it was not ideal, it had not resulted in Mrs X’s son being without the provision in his EHC Plan. Mrs X has advised me the Council did not consider the increase in costs when it provided her with a temporary budget and she had to use budget left over from the previous year to cover the shortfall in provision. Due to this, Mrs X’s son was not left without provision.
10. Although this was frustrating for Mrs X and it was a period of uncertainty, the injustice caused is not significant enough to warrant an investigation because there is no loss of provision. The Council upheld Mrs X’s complaint about the delays in securing the personal budget and apologised. There is nothing further we can add to this.

Commissioning an EP assessment

11. Mrs X says she allowed the assessment to take place believing it was to support ongoing clarity around provision. The Council acknowledges it commissioned the assessment to ensure the EHC Plan was reflective of the child’s needs.
12. We cannot investigate this point of complaint because if Mrs X is unhappy with the content of the EHC Plan where the assessment was used, she had the right to appeal to the Tribunal and it was reasonable for her to exercise this right. For this reason, we will not investigate this aspect of Mrs X’s complaint.

PDA Training

13. The Council said it would be rolling out training in September 2025. We will not investigate this complaint because we would not achieve a different outcome.

Complaint handling

14. The Council responded to Mrs X’s complaints regarding both of her children in one document. Mrs X says this resulted in confusion, diluted responses and procedural unfairness. I have seen no evidence of this. The Council has set out its response regarding Mrs X’s son at the beginning of the document and the complaint response regarding Mrs X’s daughter follows this under a clear heading that shows the separation. Mrs X was unhappy they were addressed in the same document. In the Stage 2 response, the Council responded separately. There is nothing more we can achieve for Mrs X or add to this. In any event, we will not investigate the Council’s complaint handling when we cannot investigate the substantive matters of the complaint because it would not be proportionate to do so.

Restricting communication

15. Mrs X says the Council provided her with one point of contact and told communication would be limited to a single weekly email. The Council is entitled to do this when it receives large volumes of correspondence from an individual. The Council’s actions have not prevented Mrs X from contacting the Council completely because she has a single point of contact. If Mrs X is worried about her concerns not being acted upon or her emails being ignored, she has the option of using the Council’s complaints process to raise these specific issues. This will enable the Council to investigate and respond appropriately. We cannot look at matters the Council has not had an opportunity to respond to first.
16. There is nothing further we can add to Mrs X’s complaint.

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Final decision

17. We will not investigate Mrs X’s complaint because further investigation would not lead to a different or worthwhile outcome.

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Investigator's decision on behalf of the Ombudsman