Summary: We will not investigate this complaint about the Council’s actions relating to the Education Health and Care Plan process. This is because the complainant appealed to a tribunal which places much of the complaint outside our jurisdiction. The injustice caused by the delay in assessing the complainant’s child is not significant enough to warrant an investigation.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained the Council took too long to decide whether to issue her son with an Education Health and Care Plan (EHC Plan). Mrs X is unhappy with the Council’s decision not to issue an EHC Plan and how this decision was reached. Mrs X also complained about the Council’s conduct during her appeal to the SEND Tribunal. The Council eventually conceded the appeal and agreed to issue an EHC Plan.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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.
5. 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. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. We will not investigate Mrs X’s complaint.
9. Parents who are unhappy with a council’s decision not to issue an EHC Plan can appeal to the SEND Tribunal. Mrs X has used this appeal right. By law, this places all matters which relate to the decision not to issue an EHC Plan outside our jurisdiction. The alleged failings in the assessment process are not separable from the matter appealed to the Tribunal. We also have no powers to consider the Council’s conduct during the appeals process itself. Much of Mrs X’s complaint is therefore outside our jurisdiction with no discretion to investigate.
10. Delay in the EHC Plan process is something we can consider. The Council was around nine weeks late issuing its original decision not to issue an EHC Plan. This delayed Mrs X’s right to appeal to the SEND Tribunal. However, the appeal was not lodged until seven weeks after Mrs X’s appeal rights were available.
11. Mrs X’s son has remained at the same school, and it is now named in his EHC Plan. The school was already providing extra support for Mrs X’s son. While the Council was at fault for taking too long to decide if it would issue an EHC Plan, the injustice to Mrs X is not enough to warrant us investigating.

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Final decision

12. We will not investigate Mrs X’s complaint because much of it is outside our jurisdiction. The injustice from the Council’s delay is not significant enough to warrant an investigation.

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Investigator's decision on behalf of the Ombudsman