Hertfordshire County Council (22 016 294)

Category : Education > Special educational needs

Decision : Closed after initial enquiries

Decision date : 28 Mar 2023

The Ombudsman's final decision:

Summary: We will not investigate this complaint about how the Council carried out an assessment of a child’s special educational needs. This is because the outcome of the assessment can be appealed to a tribunal, and it is not possible to assess any injustice caused by delay in completing the assessment until the outcome of any appeal is known.

The complaint

  1. The complainant, who I will call Dr X, complains about how the Council assessed her child’s Special Educational Needs (SEN). Dr X says the Council delayed issuing an Education Health and Care (EHC) plan, that the EHC plan does not include appropriate SEN provision and that the school named cannot meet her child’s needs.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
  3. 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

  1. I considered information provided by the complainant and the Council.
  2. I considered the Ombudsman’s Assessment Code.

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My assessment

  1. I will not investigate Dr X’s complaint about the contents of her child’s EHC plan, including the SEN provision detailed in it or the school placement named. This is because these matters carry a right of appeal to the SEND Tribunal and it is reasonable to expect her to use that right of appeal. Only the SEND Tribunal can instruct council’s to make amendments to EHC plans.
  2. The Ombudsman can consider the Council’s delays in issuing the final EHC plan. However, it is not possible to consider the effect of those delays and what provision Dr X’s child may have potentially missed until the appeal process concludes and the final EHC plan is known.

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Final decision

  1. We will not investigate Dr X’s complaint because it is reasonable to expect her to use her right of appeal to the SEND Tribunal and we are unable to assess the effect of any delay issuing the EHC plan until the appeal process has concluded.

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Investigator's decision on behalf of the Ombudsman

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