Summary: We will not investigate this complaint that the Council was at fault in its initial refusal to carry out an Education Health and Care Needs Assessment and in the process of issuing an Education Health and Care plan. The complainant has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability), and there are insufficient outstanding matters to warrant our intervention.

The complaint

1. The complainant, Ms X, complains that the Council was at fault in:
• refusing her request for an Education Health and Care Plan for her child;

• failing to take proper account of relevant information once she appealed to the Tribunal;
• delaying issuing an Education Health and Care plan which complied with the Tribunal Order; and
• failing to communicate appropriately and respond reasonably to her complaints.

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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 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)
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. 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 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 further investigation would not lead to a different outcome, or there is no worthwhile outcome achievable by our investigation.

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

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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

9. The complainant, Ms X, complains about the Council’s actions in the process of assessing her child’s education, health and care needs and in issuing his Education Health and Care (EHC) plan.
10. Ms X says the Council initially refused to carry out an Education Health and Care Assessment (EHCNA) for her child. She says she regards this decision as unlawful as, in her view, the appropriate legal tests for an EHCNA were met. She appealed to the Tribunal against the decision.
11. Ms X says that, following the refusal to carry out an EHCNA, she submitted a document setting out her child’s needs and asked that it be considered by the relevant panel. She complains that the Council did not do so, instead telling her that the appeal process would take its course. In her view, this was unreasonable, as the content of the document could have changed the Council’s position and made the Tribunal unnecessary.
12. The Ombudsman cannot investigate these aspects of Ms X’s complaint. This is because she used her right to appeal to the Tribunal. By law, the Ombudsman cannot investigate a matter about which an appeal has been made. This means we cannot take a view on whether the Council’s decision to refuse an EHCNA was flawed, whatever the final outcome.
13. The courts have held that the restriction set out above also applies to all matters relating to the appeal, including a Council’s actions during the period between the appeal being lodged and the process ending. That being the case, we cannot consider whether the Council’s failure to refer the document Ms X provided to the panel amounts to fault. There is no discretion available to us.
14. Turning to later matters, Ms X also complains about the Council’s actions once the Tribunal directed it to issue an EHC plan. She says the Council made changes to the content the Tribunal ordered and thereby delayed issuing an EHC plan which complied with the Tribunal’s directions. She also complains that the Council was at fault in its communication with her and in its responses to her complaints.
15. There are insufficient grounds for the Ombudsman to consider these matters. The complaint correspondence shows that the Council has accepted some fault and has apologised. The evidence Ms X has provided shows that the EHC plan was issued in a form she regards as compliant with the Tribunal order two months later than it should have been.
16. In recognition of the fault on its part, the Council offered Ms X a payment of £300. This appears reasonable and proportionate in the circumstances of the case and investigation by the Ombudsman would not aim to achieve a significantly different outcome. Ms X says that this payment was itself delayed, but it has now been made. There are insufficient outstanding matters to warrant our intervention.

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Final decision

17. We will not investigate Ms X’s complaint because she has used her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability), and there are insufficient outstanding matters to warrant investigation.

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Investigator's decision on behalf of the Ombudsman