Summary: We cannot investigate part of Miss X’s complaint about the review of her child’s Education Health and Care Plan because she appealed to a tribunal. We cannot investigate the Council’s compliance with a tribunal direction because it is for the tribunal to manage under its own powers. We will not investigate the remainder because the tests in our assessment code were not met.

The complaint

1. Miss X complained the Council:
1. did not attend a review meeting regarding her child, Y’s, Education, Health and Care (EHC) Plan;
2. failed to obtain updated assessments as part of her child’s EHC annual review;
3. refused to complete an updated EHC needs assessment;
4. failed to communicate with her effectively;
5. failed to comply with a SEND Tribunal direction; and
6. delayed responding to her complaints.
2. Miss X said the matter caused her frustration, distress and uncertainty.

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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. 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. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), 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

Council attendance at Y’s EHC annual review December 2024

9. Miss X said the Council failed to attend an EHC annual review for her child, Y. The Council delegated the EHC annual review to the school. This is in line with the SEND code of practice. The Council is not required to attend the EHC annual review where it delegates the meeting to the educational provider, although it is “best practice” to attend where there are significant changes anticipated.
10. There is insufficient evidence of fault by the Council to warrant an investigation, and so we will not investigate this complaint.

Updated Educational Psychology and Occupational Therapy Assessments & refusal to conduct an updated EHC needs assessment

11. Miss X asked the Council to obtain updated Educational Psychology and Occupational Therapy assessments for Y’s EHC annual review. The Council did not do so. She later requested an updated EHC needs assessment, but the Council refused.
12. We cannot investigate these complaints. The outcome of the alleged failure to obtain updated assessments is that the content of Y’s EHC Plan is flawed. Miss X has used her right to appeal the content of Y’s EHC Plan to the SEND Tribunal.
13. Because the SEND Tribunal will now consider the content of Y’s EHC Plan and has wide-ranging powers to order any assessments it considers necessary, the law says the Ombudsman has no jurisdiction to investigate these matters.

Poor communication

14. Miss X complained about the Council’s communication, including the Council’s use of language referring to her parental choice of school as a “preference” and referring to an outcome as “disappointing” for Miss X when her preferred choice of school did not accept Y for a placement.
15. In its complaint response, the Council explained its use of “preference” and “disappointment” reflects broader terminology it uses in a legal context. However, it said it would consider its communication in the future to ensure its response to parents is appropriate.
16. An investigation by the Ombudsman is unlikely to achieve a different outcome for this matter, and so we will not investigate.

Failure to comply with a direction of the SEND Tribunal during proceedings

17. In her complaint to the Ombudsman, Miss X noted the Council failed to comply with a direction of the SEND Tribunal during ongoing proceedings.
18. We cannot investigate this complaint. The law says it is for the Tribunal to manage its own processes and procedures, and the Ombudsman has no jurisdiction to consider this issue in lieu of the Tribunal.

Delay in complaints handling

19. Miss X complained the Council delayed in responding to her complaints. The Council completed the full complaints process within three months of Miss X’s original complaint.
20. It is not a good use of public resources to investigate complaints about complaint handling where we do not or cannot investigate the substantive matter. Consequently, we will not investigate this complaint.

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Final decision

21. We cannot investigate part of Miss X’s complaint because she appealed to a tribunal, and it is for the tribunal to manage its own processes. We will not investigate the remainder because the tests in our assessment code were not met.

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Investigator's decision on behalf of the Ombudsman