Summary: We cannot investigate this complaint about the Education, Health and Care Plan process and the provision because Miss X has used her right to appeal to the Tribunal. We will not consider complaints about Subject Access Requests because they are best considered by the Information Commissioner’s Office.

The complaint

1. Miss X complains on behalf of her son, Mr Y, who has an Education, Health and Care (EHC) Plan maintained by the Council. Miss X complains the Council named a placement in Section I of the Plan that was unsuitable, it failed to provide Mr Y with the provision outlined in his Plan, failed to issue a draft Plan before finalising it and it failed to provide her with all relevant information in response to her subject access requests (SARs).

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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 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:

• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

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

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. 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.
6. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
7. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

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How I considered this complaint

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

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My assessment

10. Miss X wanted College B named in Section I of Mr Y’s EHC Plan. The Council named College C in the Plan and finalised it without providing Miss X an opportunity to comment. The Council has acknowledged it was at fault for not issuing a draft EHC Plan before finalising it. The Council has explained the only amendment it made was to Section I, naming College C. Mr Y has not attended the college named in his EHC Plan. Miss X has used her right to appeal to the Tribunal. She has appealed the naming of College C in Section I.

Securing and delivering the educational and therapeutic provision

11. We will not start an investigation into Miss X’s complaint. The issue at the heart of Miss X’s complaint is the placement named in Section I of Mr Y’s EHC Plan.
12. Parents who are unhappy with their child’s EHC Plan have a right of appeal to the Tribunal. We expect parents to use that right unless it is unreasonable for them to do so. It is the mechanism set up by Parliament for parents to challenge the educational provision or the setting named in their child’s EHC Plan.
13. In this case, it was reasonable for Miss X to challenge the college named by appealing to the Tribunal. This is because the Tribunal can decide if an EHC Plan should be amended and a different college named. That is not something we can do.
14. The fact that it would have been reasonable for Miss X to appeal means that the content of the EHC Plan, and matters which are connected to the content, do not fall to be investigated by the Ombudsman. This is because the courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal.
15. This means that if a child or young person is not attending school or college, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
16. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
17. We cannot investigate the education provision in place for Mr Y following the Council’s decision to name the college as it is not separable from that right of appeal.

Mr Y’s EHC Plan

18. The Council acknowledges it should have issued a draft EHC Plan before finalising it. It has apologised to Miss X and it has provided her with her right to appeal if she is unhappy with the EHC Plan. Miss X has exercised this right and it was reasonable for her to do so. We will not consider this aspect of Miss X’s complaint because further investigation would not lead to a different outcome and we could not add to the Council’s investigation.

Subject Access Request (SAR)

19. Miss Y complains about the Council not providing her with all the relevant information regarding how the placement decision was made. We will not investigate this aspect of Miss X’s complaint because the appropriate body to consider complaints about SARs is the Information Commissioner’s Office (ICO).

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Final decision

20. We cannot investigate Miss X’s complaint because she has appealed to the Tribunal, further investigation would not lead to a different outcome and her complaint about SARs is best considered by the ICO.

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Investigator's decision on behalf of the Ombudsman