The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint the Council issued a final Education Health and Care Plan for his son without properly consulting on changes to the Plan. This is because Mr X has appealed to the Special Educational Needs and Disability Tribunal.
The complaint
The complainant, whom I shall refer to as Mr X, complained the Council issued a final Education Health and Care (EHC) Plan for his son, without giving him the chance to comment on changes to the Plan. Mr X successfully challenged the Plan via the SEND Tribunal.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered information provided by the complainant and the Ombudsman’s Assessment Code.
My assessment
We will not start an investigation into Mr X’s complaint.
The issue at the heart of Mr X’s complaint is the Council failed to consult with him about changes to his son’s EHC Plan. These changes were subject to an appeal to the SEND Tribunal which decided in Mr X’s favour. The issue around consultation is inextricably linked to the content of the Plan. The exception at paragraph 3 therefore applies. We cannot consider a complaint when someone has appealed to a tribunal.
But even if this exception did not apply, we would not investigate Mr X’s complaint. We could never say if the Council and Mr X would have agreed the content of the final EHC Plan if it had acted differently. I have not reached a view on whether the Council followed the correct process. But even if there was fault, we could not say this affected the outcome. It was ultimately for the SEND Tribunal to resolve any difference of opinion about the content. Mr X successfully used his right of appeal, and an investigation would be unlikely to lead to a different outcome for Mr X or his child.
Final decision
We will not investigate this complaint. This is because the content of the EHC Plan was decided by the SEND Tribunal and the matters complained of are not separable from that.
Investigator's decision on behalf of the Ombudsman