Summary: We will not investigate this complaint. The Council’s actions have not caused Mr B so significant an injustice as to warrant investigation. By law we cannot investigate the content of Mr B’s son’s Education Health and Care Plan.

The complaint

1. The complainant, who I will refer to as Mr B, complains that the Council delayed issuing his son’s Education Health and Care Plan (EHCP), failed to offer his son his choice of educational provision, and was at fault in how it communicated with him and his son. He argues that this fault on the Council’s part caused his family distress and financial loss.

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The Ombudsman’s role and powers

2. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide any injustice is not significant enough to justify our involvement, or further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))
3. 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)
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 SEND Tribunal in this decision statement.

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.
7. The complainant has had the opportunity to comment on my draft decision and I have considered his comments.

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My assessment

8. Mr B’s son has special educational needs and an EHCP. He is due to move to post-16 education in September 2021.
9. When a young person with an EHCP is approaching post-16 transition, councils must complete a review of the EHCP by 31 March in the transition year. Mr B complains that the Council failed to issue the EHCP by the 31 March deadline. He further complains about the content of the EHCP, arguing that his son’s wishes were not taken into account, resulting in an inappropriate placement being named.
10. Mr B has appealed to the SEND Tribunal against the placement named in the EHCP. He says the delay has led to his appeal hearing being scheduled for the end of September 2021, a month into the new term.
11. In response to Mr B’s complaint, the Council says the EHCP was issued on 9 April 2021. It accepts that this was fault on its part and has apologised.
12. The Ombudsman will not investigate Mr B’s complaint. The Council accepts it was at fault and the Ombudsman’s involvement would not lead to a different finding on this point. The question for me is whether the delay has caused Mr B the injustice he attributes to it.
13. In this regard, I note that the EHCP was issued on 9 April 2021 and reissued on 12 April 2021. Mr B’s appeal rights were engaged on 9 April 2021, and the delay therefore amounted to five working days. The fact that the SEND Tribunal is not scheduled until four weeks into term indicates that, even if the EHCP had been issued on time, the hearing would, in all likelihood, have been after the beginning of term. The five day delay has not, in itself, caused Mr B so significant an injustice as to warrant our intervention.
14. Mr B has used his right to appeal to the SEND Tribunal. Where appeal rights are used, the law says the Ombudsman cannot intervene. We have no jurisdiction to consider whether the placement named in the EHCP was appropriate or not. That is a matter for the SEND Tribunal.
15. Mr B also complains about how the Council has communicated with his family about the transition process, and the fact that information on its website was not updated. These issues are not separable from the substantive matter and do not, in themselves, merit investigation by the Ombudsman.

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Final decision

16. We will not investigate this complaint. The Council’s actions have not caused Mr B so significant an injustice as to warrant investigation. The law says we cannot consider the content of his son’s EHCP.

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Investigator's decision on behalf of the Ombudsman