Summary: We cannot investigate part of Miss X’s complaint about the content of her child’s Education, Health and Care (EHC) Plan or the updated EHC needs assessment the Council conducted because Miss X appealed to a tribunal, and the law says we cannot investigate. We will not investigate the remainder because the tests in our Assessment Code are not met.

The complaint

1. Miss X complained the Council:
1. failed to inform her about the possible outcomes of an Education, Health and Care (EHC) needs re-assessment of her child, Y;
2. named an unsuitable placement in Y’s EHC Plan and about the content of Y’s EHC Plan;
3. provided inaccurate reports to its internal panel;
4. failed to investigate her concerns about matters raised during mediation; and
5. delayed responding to her complaints.
2. Miss X said the matter caused her frustration and distress. She said it affected Y’s education.

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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. 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.
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. 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.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

Background

9. Miss X has a child, Y, who has Special Educational Needs (SEN) and an Education, Health and Care (EHC) Plan. Y’s EHC Plan originally specified Education Other than at School (EOTAS). However, Miss X wanted more provision for Y. As part of a mediation agreement, the Council agreed to conduct an updated EHC needs assessment of Y.
10. The Council conducted the EHC needs assessment and later updated Y’s EHC Plan. It changed the provision to name a school in section I and removed the EOTAS provision.
11. Miss X appealed the content of the updated EHC Plan to the Tribunal.

Failure to explain possible outcome of updated EHC needs assessment

12. Miss X said she was misinformed during mediation about the possible outcomes of the EHC re-assessment. She said she would not have agreed to a re-assessment if she was aware the outcome could be that Y’s EOTAS package could be removed.
13. We will not investigate this complaint. Although Miss X feels she was not informed of the possible outcome, the decision to conduct a re-assessment was agreed at mediation. Under the SEND Code of Practice, the Council can initiate a re-assessment under its own volition when it believes a child’s needs have changed.
14. I do not consider the issues complained about amount to a significant injustice to Miss X. The purpose of the re-assessment is to establish Y’s needs regardless of the possible outcomes. Therefore, we will not investigate this complaint.

Failed to investigate incorrect advice given during mediation

15. Miss X said she was given incorrect information during mediation. She said she was told an Educational Psychologist would need to comment on whether Y required an enhanced package of EOTAS, but later discovered this was untrue.
16. We will not investigate this complaint. In its complaint response, the Council explained there was no evidence Miss X was told that an Educational Psychologist was the only person who could recommend EOTAS.
17. An investigation by the Ombudsman is unlikely to reach a different outcome, and so we will not investigate.

Inaccurate/ incomplete reports to internal panel, decision to name a school in section I, and the content of Y’s EHC Plan

18. Miss X complained about the reports the Council used in its internal panel to determine what provision to specify in Y’s EHC Plan. She complained the Council removed Y’s EOTAS provision and named a school in section I which she says is not suitable for Y’s needs.
19. We cannot investigate these complaints. The consequence of Miss X’s alleged injustice is that the EHC Plan is wrong. Because Miss X has appealed to the Tribunal about the EHC Plan, the law says the Ombudsman cannot now investigate the process by which the decision was made.

Delay in complaints handling

20. Miss X complained about delays in the Council’s complaints handling. The Council apologised to Miss X as part of its complaints process. An investigation by the Ombudsman is unlikely to achieve anything different, and so 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 the law says we cannot investigate. We will not investigate the remainder because the tests in our Assessment Code are not met.

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Investigator's decision on behalf of the Ombudsman