Summary: We will not investigate this complaint that the Council was at fault in the process of assessing and meeting the complainant’s son’s special educational needs, issuing and reviewing his Education Health and Care plan, securing interim provision, communicating with her and responding to her subsequent complaint. This is because the complainant’s appeal to the First-tier Tribunal (Special Educational Needs and Disability) places the substantive matters outside the Ombudsman’s jurisdiction.

The complaint

1. The complainant, Mrs X, complains that the Council:

• failed to meet statutory deadlines during the process of her son Y’s Education Health and Care Needs Assessment (EHCNA);
• failed to include a Speech and Language report in the final Education Health and Care (EHC) plan;
• failed to secure the provision included in the report;
• caused the failure to secure interim educational provision before September 2024;
• delayed securing interim educational provision from September 2024;
• failed to communicate properly with her;
• failed to process Y’s Annual Review within statutory deadlines;
• failed to properly consult with schools throughout the consultation process; and
• failed to respond to her complaint within the timescales set out in its corporate complaint procedure.

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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. 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)
6. 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

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

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My assessment

9. Mrs X’s son Y has special educational needs. The Council carried out an EHCNA and issued Y’s final EHC plan in January 2024. In doing so, it met the statutory 20-week timescale for the assessment. The EHC plan named a mainstream school. Mrs X used her right to appeal to the Tribunal against the content of the EHCP, including the placement.
10. Mrs X contends that, in the course of the EHCNA, the Council failed to obtain a report setting out Speech and Language Therapy (SALT) provision within the timescale set out in the statutory guidance. The result of this failure, which the Council accepts, was that the SALT provision was not included in the final EHC plan. She further complains that the Council reneged on an undertaking to add the report to the EHC plan when received. She contends that, as a result, Y did not receive the SALT provision to which he was entitled between January and July 2024.
11. These matters do not fall to be investigated by the Ombudsman. This is the case even though the Council has accepted that it was at fault. The effect of the failure to obtain and include the SALT report is that the provision was not included in the EHC plan. The Ombudsman does not investigate matters relating to EHC plan content because this carries the right to appeal to the Tribunal and it is reasonable to expect that right to be used.
12. The fact that Mrs X used her appeal right places subsequent matters which were, or could have been, subject to the appeal outside the Ombudsman’s jurisdiction by law. This means we cannot investigate matters relating to the failure to deliver SALT provision. There is no discretion available to us on this point. Neither can we pursue Mrs X’s complaint that the Council was at fault in the process of consulting with schools. This matter is also caught by the legal restriction set out above as Mrs X’s appeal concerned the school named in Part I of the EHC plan.
13. The aspects of Mrs X’s complaint which relate to the failure to secure interim educational provision also fall outside the Ombudsman’s remit. This is because the need to make interim provision is bound up with the matters which were subject of appeal. When the need for provision is linked to, or is a consequence of, a parent’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. That is the case here.
14. The period the law says we cannot investigate starts from the date the EHC plan was issued and ends when the Tribunal process concludes. The Annual Review of Y’s EHC plan took place within this period. The Annual Review process is separable from the appeal process, but the matters considered during the processes are not. The Ombudsman will not therefore investigate the Annual Review. If Mrs X remains unhappy with the content of Y’s EHC plan, it is open to her to request an urgent review.
15. For the reasons set out above, we will not investigate the substantive matters raised in Mrs X’s complaint. We will not usually investigate how a council has considered a complaint about matters which do not fall be to investigated. It is not a good use of our resources to do so. We will not therefore investigate the Council’s responses to Mrs X’s complaint

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Final decision

16. We will not investigate Mrs X’s complaint because her appeal to the Tribunal places the substantive matters outside the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman