London Borough of Richmond upon Thames (21 011 321)

Category : Education > Special educational needs

Decision : Not upheld

Decision date : 29 Mar 2022

The Ombudsman's final decision:

Summary: Ms X complained the Council delayed issuing her daughter’s final Education Health Care Plan following an annual review. Ms X has appealed to Tribunal. We have discontinued our investigation. It is not possible to determine the level of injustice caused by the Council’s alleged fault until the Tribunal has reached a decision

The complaint

  1. Ms X complained the Council delayed issuing her daughter’s (A’s) final Education Health Care Plan (EHC Plan) following an annual review. She said this meant A did not have the educational provision she needed. She said it also delayed her right to appeal.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I have considered Ms X’s complaint and have spoken to her about it.
  2. I have also considered the Council’s response to Ms X.
  3. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The law

  1. Under regulation 22(3) of the Special Education Needs Disability (SEND) regulations 2014 councils are required to send the finalised EHC plan as soon as practicable and in any event within 8 weeks of the council sending a copy of the draft amended EHC plan or amendment notice.
  2. 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.
  3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)

What happened

  1. Ms X’s daughter, A has SEN and an EHC Plan. The Council carried out an annual review of A’s Plan in October 2020. Ms X said, at the meeting, the Council agreed that A should attend a specialist school.
  2. As part of the annual review, the Council arranged an educational psychologist assessment of A. The educational psychologist report was sent to Ms X in January 2021. Ms X said she was unhappy with the report and made amendments.
  3. The Council delayed issuing A’s final EHC Plan until the final educational psychologist report was issued.
  4. The Council issued A’s final EHC Plan in May 2021. The Council named a mainstream school rather than a specialist school. Ms X appealed to the SEND Tribunal. Ms X said the hearing has been postponed until May 2022.

My findings

  1. Ms X appealed against the content of the EHC Plan and the Council’s decision to name a mainstream school. This would normally not affect my ability to investigate the delays in issuing the final EHC Plan.
  2. However, until the Panel has decided the appeal, it is not possible for me to determine the level of any injustice caused by the alleged fault. At the Ombudsman, we must also consider the level of injustice the alleged fault has caused.
  3. The Tribunal will decide whether the Council should have named a specialist school in A’s Plan. Once this decision is reached, we would be able to determine whether the delay in issuing a final Plan caused A and/or Ms X an injustice, and the level of this injustice.
  4. Therefore, I have discontinued my investigation.

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Final decision

  1. I have discontinued my investigation. It is not possible to determine the level of injustice caused by the Council’s alleged fault until the Tribunal has reached a decision.

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Investigator's decision on behalf of the Ombudsman

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