Summary: We will not investigate this complaint about the poor handling of an application for an Education Health and Care Plan. The injustice caused by any fault is not sufficient to warrant investigation.

The complaint

1. Mr X said the Council handled his application for an Education Health and Care (EHC) Plan poorly. He said he did not understand why it took so long to get to the Outcome and why there were so many errors.

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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 fault has not caused injustice to the person who complained.(Local Government Act 1974, section 24A(6))
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. 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.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. When I spoke to Mr X, he told me he had electively home educated his child. He said he had asked for an EHC Plan in about late-September 2021 as his child was likely to need more assistance in the run up to GCSE examinations starting in May 2022.
8. The Council at first refused to assess Mr X’s child’s needs, then later refused in April 2022 to issue an EHC Plan. Mr X confirmed to me he did not want an EHC Plan after the GCSE examinations in the autumn of 2022, when his child would begin post-16 studies and no longer be educated at home.
9. While the actions Mr X described to me might have been fault, they did not cause injustice in terms of missed provision in the run-up to the 2022 examination season. This is because any council receiving an application in late-September 2021, that it decided on time not to assess, would have done this by mid-November 2021. Even if that council then immediately conceded as soon as a parent signalled his or her intention to appeal, a further decision not to issue an EHC Plan would have been unlikely to have been before late-February 2022. Given appeals to the Special Educational Needs and Disability Tribunal usually involve a wait of several months for a hearing, and councils that are told to issue EHC Plans have a further period after a Tribunal to issue them, we could not say Mr X’s child would have received provision in time for the examination season starting in May 2022, even if everything ran to time.
10. We cannot consider how the Council arrived at its decisions, because those decisions carried a right of appeal to the SEND Tribunal it was reasonable to use.

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Final decision

11. We will not investigate Mr X’s complaint because there is not enough evidence of injustice caused by fault to warrant this.

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Investigator's decision on behalf of the Ombudsman