Summary: We cannot investigate this complaint about the Council’s handling of Miss X’s daughter’s Education Health and Care needs assessment. This is because the issues Miss X raises concern the way the Council made its decisions about the content of the Education Health and Care Plan and Miss X has appealed to the Tribunal to challenge this. To investigate these issues would therefore encroach on the role of the Tribunal.

The complaint

1. Miss X complains the Council failed to issue a draft Education Health and Care (EHC) Plan for her daughter before issuing the final Plan. She says this renders the EHC Plan unlawful as it denied her the opportunity to make comments. She also complains the Plan issued did not include all reports considered as part of the assessment process and was factually incorrect. Miss X says this led to inadequate and insufficient support for her child.

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The Ombudsman’s role and powers

2. 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)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. We may decide to investigate if we consider it would be unreasonable to expect the person to use this right but cannot investigate if they have already used it. (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.

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How I considered this complaint

6. I considered information provided by Miss X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. The Council carried out an EHC needs assessment but decided not to issue Miss X’s daughter an EHC Plan. Miss X appealed against this decision and the Council reversed its decision. The Tribunal concluded the appeal by issuing a consent order stating the Council must secure an EHC Plan for the child. But Miss X is not happy with the Council’s actions in drafting the EHC Plan or with the final Plan’s contents. She has therefore appealed again to the Tribunal to alter it.
9. As part of her complaints Miss X has also quoted caselaw which she says renders the final EHC Plan unlawful. But it is not our role to decide whether the EHC Plan issued is lawful or not. This is a matter for the courts.
10. I understand Miss X wants us to look at the Council’s processes and the specific issues set out at Paragraph 1, rather than the content of the final EHC Plan which was the subject of her appeal, but the issues are too closely related for us to consider these issues in isolation. The impact of the alleged failures is that the final EHC Plan does not meet the child’s needs, and this is what the Tribunal will consider as part of Miss X’s appeal. Any investigation into these issues therefore risks encroaching on the Tribunal’s role.
11. Miss X is also concerned about the support being provided to her child but it appears this issue primarily concerns her disagreement with the content of the EHC Plan. It is therefore outside our jurisdiction to investigate. However, even if it is not, I have seen no evidence to show she raised it as part of her complaint to the Council before she came to us.
12. The Council has suggested Miss X raise her concerns with the child’s school and if, having done so, Miss X believes it is still failing to deliver the provision set out in her child’s EHC Plan she may wish to raise a new complaint. She would need to exhaust the Council’s complaints process with this issue before we could consider it further.
13. Miss X is also unhappy with the way the Council dealt with her complaint. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.

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Final decision

14. We cannot investigate this complaint. This is because the issues Miss X raises overlaps with her appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman