Summary: We will not investigate Ms X’s complaint about the Council’s handling of her child’s Education, Health and Care Plan because she has exercised her right of appeal to the First-tier Tribunal (Special Educational Needs and Disability). There is not enough evidence of fault in the Council’s decision to hold the annual review when it did. We cannot investigate the personnel matters or the actions of school staff. It is reasonable for Ms X to raise her concerns about the disclosure of personal date with the ICO. The Council has provided a suitable remedy for the delay in its complaint handling.

The complaint

1. Ms X complains about
• The Council’s handling of the annual review of her child’s Education, Health and Care (EHC) plan, including the actions and conduct of staff. She says matters she raised were disclosed to others without her consent.
• The Council held the annual review less than 12 months after the previous review.
• The resulting EHCP does not adequately reflect his needs or provide enough support.

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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 most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions about special educational needs. We refer to it as the Tribunal in this decision statement.
6. The Information Commissioner's Office considers complaints about freedom of information. So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner. 

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How I considered this complaint

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

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My assessment

9. Ms X says the Council did not properly complete the annual review of her child’s Y) EHC Plan. She says the final EHC Plan does not reflect his needs or provide enough support. Ms X also disagrees with the resulting EHC Plan and the Council's later decision to cease maintaining it.
10. Ms X says the Council held an annual review less than 12 months before the previous EHC Plan was issued.
11. The Council explained that, where an annual review is not completed during the summer term, it must be carried out in the child's final year of education. It also said that reviews are often held before the full 12-month period have passed to allow time for any amendments and for a revised EHC Plan to be finalised within the statutory timescales.
12. I am satisfied the Council has explained why it held the annual review early. I find not enough evidence of fault in the Council’s actions to justify further investigation. Parents who are unhappy with the content of an EHC Plan have a right of appeal to the First-Tier Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions. As Ms X has used her appeal rights, we cannot investigate these matters further.
13. Ms X complained the finalised EHC Plan does not reflect Child Y’s needs or provide enough support. She also disagrees with the Council’s later decision to cease maintaining the EHC plan. As Ms X has used her right of appeal, we cannot investigate these matters.
14. Ms X complained the Council disclosed her personal data without her consent. The Information Commissioner’s Office (ICO) deals with data matters. It would be reasonable for her to complain to the ICO, which is better placed to consider and decide such matters.
15. Ms X also complained about the conduct of Council and school staff during this process.
16. The Council said it could not investigate this part of the complaint because Ms X had not provided enough information about the alleged incidents.
17. We cannot investigate complaints about the conduct of individual of Council staff where they concern personnel matters. Therefore, we cannot investigate this part of the complaint.
18. The law also prevents us from investigating complaints about the conduct and internal management of a school. We therefore cannot investigate the conduct of school staff. If Ms X is dissatisfied with the conduct of school staff, she should raise her concerns through the school's own complaints procedure.
19. Ms X also complained about delays in the Council’s complaint handling and responses. The Council has recognised these delays, offered a remedy of £50 and apologised. I consider this is a proportionate response to the injustice caused. It is unlikely further investigation would achieve significantly more for Ms X.

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Final decision

20. We will not investigate Ms X’s complaint because she has already appealed to the Tribunal about the content of the EHC plan. There is not enough evidence of fault to hold the annual review when it did. We cannot investigate the personnel matters or the actions of school staff. It is reasonable for Ms X to raise her concerns about the disclosure of personal date with the ICO. The Council has provided a suitable remedy for the delay in its complaint handling.in the Council’s decisions to review or cease maintaining the EHC Plan.

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Investigator's decision on behalf of the Ombudsman