Summary: The Ombudsman will discontinue Mrs B complaint that the Council delayed issuing her son’s final EHC Plan. This is because it is not possible to assess the extent of any injustice until the provision he should have been receiving is known. A Tribunal is currently deciding this.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complains that the Council has delayed issuing her son’s Education and Health Care (EHC) Plan, Mrs B says this has negatively impacted D’s education and has caused distress to the family, however the Council has failed to fully remedy this.

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The Ombudsman’s role and powers

2. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
5. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

6. I considered:
• Mrs B’s complaint and the information she provided.
• documents supplied by the Council.
• relevant legislation and guidelines.
7. I also sent a draft version of this decision to both parties and invited their comments.

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What I found

What happened

8. Mrs B has a son, D, who had Downs Syndrome.
9. In July 2019, Mrs B requested that the Council carry out an assessment for an Education Health and Care (EHC) plan for D. In October, the Council agreed to undertake the assessment and it contacted professionals in December.
10. Mrs B contacted the Council in January to ask for an update. The Council said that the assessment had been held up by delays in receiving information from the school and an Educational Psychologist.
11. In February Mrs B complained to the Council about the delays and the Council’s poor communication during the process.
12. In September, at stage 2 of its complaints process, the Council upheld Mrs B’s complaint in full. It accepted that it had been delays completing the assessment and that its communications had been poor.
13. The Council apologised to Mrs B and offered to make a payment of £250 for the time and trouble she had been too pursuing the matter. The Council said it would be issuing D’s final EHC plan within weeks.
14. The Council issued D’s EHC plan, but Mrs B disagreed with he contents. She therefore appealed the contents of the plan to SEND. The case is due to be heard in March.

Analysis

15. When investigating complaints about delays to EHC assessments we would look at the SEN provision that should have been provided by the Council. If we find fault, we look at what injustice that fault caused the child and family.
16. We have published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a council. Our primary aim is to put people back in the position they would have been in if fault by the Council had not occurred. Where this is not possible, we may recommend the Council makes a financial payment.
17. The Ombudsman cannot currently assess the impact of any fault on the child and family until it is known what SEN support the child should have received. We will not know this until the Tribunal has finished. It is not right for us to investigate this complaint until then.

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Final decision

18. I have discontinued my investigation on the basis that the Ombudsman cannot assess the impact of any delay or recommend a remedy until the case has been decided by the tribunal. Once this has been done Mrs B may complain to the Ombudsman again.

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Investigator's decision on behalf of the Ombudsman