Summary: We will not investigate this complaint about the Council’s handling of Mr X’s Education, Health, and Care needs assessment and plan. This is because the Council has agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused by the fault accepted. We will not investigate the rest of Mr X’s complaints because it is reasonable for him to use his right of appeal to the SEND Tribunal.

The complaint

1. Mr X complains about the Council’s handling of his daughter’s Education, Health and Care (EHC) needs assessment and plan. He complains the Council:
• Inappropriately declined to complete an EHC needs assessment initially.
• Disregarded information provided.
• Delayed in issuing the draft and final EHC plan.
• Declined his request for a personal budget.
• Falsified information on the EHC plan.
• Failed to name a college of their choosing in the EHC plan.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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

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. Mr X had a right of appeal the Council’s decision to decline to complete an EHC needs assessment for his daughter. The evidence shows Mr X used his right of appeal and the Council conceded the appeal in January 2023. Therefore, we cannot investigate this element of Mr X’s complaint.
9. Regarding Mr X’s complaint the Council has disregarded information provided, falsified information on the final EHC plan, and failed to name a college of their choosing, Mr X can appeal to the SEND Tribunal if he considers the EHC plan is insufficient. Therefore, we cannot investigate these complaints.
10. Mr X requested a personal budget to secure a therapy which he said was not offered by the NHS. In response to our enquiries, the Council provided its reasons for declining Mr X’s personal budget request. The Council confirmed the therapy was referenced in the final EHC plan under Section G as it was a health provision. Mr X disagrees and considers the provision should be included within Section F.
11. An investigation is not warranted here as we are not likely to find fault with the way the Council considered Mr X’s request for a personal budget. Further, if Mr X disagrees with the content of Section F, as he believes the therapy should be included within this section of his daughter’s EHC plan, he can appeal this. I am satisfied it is reasonable for Mr X to use his right of appeal.
12. The Council has accepted there was a delay in issuing the final EHC plan. The Council should have issued the final EHC plan by April 2023, in accordance with the timescales set out in Regulation 45 of the SEND Regulations. The Council did not issue the final EHC plan until June 2023; a delay of two months.
13. I am satisfied the delay will have caused an injustice to Mr X as the delay will have frustrated his appeal rights. Further, the delay will also have had an impact on Mr X’s daughter as she did not receive her special educational provisions in a timely manner and there is some uncertainty as to how this would have impacted her educational progress.
14. We therefore asked the Council to consider remedying this by making a payment of £300.

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Agreed action

15. To its credit, the Council has agreed to resolve the complaint and will complete the above within four weeks of the final decision.

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Final decision

16. We have upheld this complaint as the Council has agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused by the fault accepted. We will not investigate the rest of Mr X’s complaints because it is reasonable for him to use his right of appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman