Summary: The Ombudsmen cannot investigate Ms X’s complaint. She has previously appealed to the tribunal about the contents of her son’s Education, Health and Care plan.

The complaint

1. Ms X complains about Wirral Clinical Commissioning Group’s (the CCG) report for her son’s Education, Health and Care plan (EHC plan). The CCG did not seek the input of three health professionals, despite Ms X requesting it. The CCG’s report led to the removal of speech and language and occupational therapies from section F of her son’s EHC plan.
2. Ms X says this caused her distress, and her son has lost that support. Ms X has also paid for private assessments to show the importance of that support.
3. Ms X would like training for staff at Wirral Metropolitan Borough Council (the Council), the CCG and Wirral University Teaching Hospital NHS Foundation Trust (the Trust) to ensure their staff are aware of their responsibilities under the relevant guidance.

Back to top

The Ombudsmen’s role and powers

4. We cannot investigate a complaint if someone has appealed to a tribunal. (Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 26(6)(a), as amended)

Back to top

How I considered this complaint

5. I considered information Ms X provided in writing and by telephone. This includes documents by the organisations complained about. I have provided Ms X with a draft version of this statement and considered her comments about it.

Back to top

What I found

6. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education. Only the tribunal can do this.
7. The SEND code of practice: 0 – 25 years (2014) provides guidance on the special educational needs and disability (SEND) system for children and young people.
8. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
9. In November 2018 Ms X asked the Council to seek advice from three health professionals (a paediatrician, a psychiatrist and a mental health practitioner) into the annual review of her son’s EHC plan.
10. In December 2018 the CCG told Ms X they would assess her son, and not seek advice from the health professionals. Ms X told the CCG they were not acting in line with the SEND code of practice. The CCG disagreed and said they were.
11. In January 2019, a manager at the Trust supported the CCG to assess Ms X’s son.
12. In response to Ms X complaint, the Trust and CCG provided a joint response. They said where the SEND code of practice uses the word ‘must’ it refers to a statutory requirement. Where it uses ‘should’ the relevant professionals must consider the guidance, and if it should explain it deviates from the guidance. Also, the CCG’s report (sent to the Council) was reviewed by a paediatrician, who did not have any concerns.
13. In response to the draft decision, Ms X told me she was able to agree the contents of section F through the working document process. Therefore, her appeal never made it to the tribunal. However, this does not take away from the fact Ms X appealed the contents of section F of Y’s EHC plan to tribunal. This means the Ombudsmen cannot consider secondary issues of a complaint (the actions of the CCG), when the primary issue (the content of the EHC plan) is or has been subject to a statutory appeal.

Back to top

Final decision

14. I consider the Ombudsmen cannot investigate this complaint.

Back to top

Investigator's decision on behalf of the Ombudsman