Summary: Mrs M complains the latest annual review of her son B’s Education, Health and Care (EHC) Plan did not comply with the statutory Code of Practice. Mrs M does not consider the Plan reflects B’s needs. We have not investigated Mrs M’s complaint. The complaint is effectively a challenge to B’s EHC Plan, so it would be appropriate for Mrs M to use her right of appeal to the SEND Tribunal.

The complaint

1. Mrs M complains the latest annual review of her son B’s Education, Health and Care (EHC) Plan did not comply with the statutory Code of Practice.
2. Mrs M complains the Council did not review the descriptions of B’s special educational needs (section B), health needs (section C) and social care needs (section D).
3. Further, Mrs M complains the Council did not properly check whether B was making progress and achieving the outcomes specified in the Plan. Mrs M complains the Council has not updated baseline assessments since 2019 and so cannot judge whether B is making progress. Mrs M complains the Council has not assessed B’s progress against ‘age related expectations’.
4. Mrs M complains that amendments to B’s Plan following the annual review have not taken account of her feedback and comments.
5. I understand Mrs M considers:
• section B does not fully describe B’s special educational needs;
• B has health needs which should be included in section C;
• he has social care needs which should be included in section D;
• the outcomes in section E do not make sense;
• section F does not accurately describe special educational provision to meet B’s special educational needs; and
• B requires an assessment by an Educational Psychologist to establish a baseline against which to measure progress.
6. Mrs M is unhappy with the Council’s handling of her complaint. She says she would like a meeting with someone senior to go through B’s EHCP to highlight what she believes is missing and to “identify and resolve the issues at hand”.
7. B’s social care assessment is the subject of a separate complaint to us.

Back to top

The Ombudsman’s role and powers

8. We investigate 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 do not start or continue an investigation if we decide:

• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider the complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

Back to top

How I considered this complaint

9. I have considered information provided by Mrs M and the Council. I invited Mrs M and the Council to comment on my draft decision.

Back to top

What I found

10. Mrs M’s son, B, has an Education, Health and Care (EHC) Plan maintained by the Council.
11. Mrs M says the Plan is inadequate and she has been trying to address problems with the Plan ever since it was first issued. Mrs M complains the Plan does not reflect B’s needs or the special educational provision required to meet them.
12. Mrs M has made a number of complaints to the Council and appeals to the SEND Tribunal but these have not resolved her concerns.
13. We have investigated complaints from Mrs M in 2019, 2022 and 2023.
14. This complaint concerns the most recent annual review of B’s EHC Plan. His school held an annual review meeting on 25 April 2023. Previous reviews were held in January 2023 and September 2022.

Consideration

15. The Ombudsman is an administrative review. We check the Council followed the procedure set out in legislation and government guidance when organising the review. We cannot make decisions about a child’s special educational needs or the provision they require. Only the SEND Tribunal can do this.
16. Mrs M complains the Council failed to follow the Code of Practice when carrying out the review.
17. Mrs M’s dissatisfaction with B’s EHC Plan goes beyond the administrative procedures the Council followed to undertake the review. She believes the Plan itself is flawed. She says the Plan does not reflect all B’s needs, the special educational provision specified in the Plan does not make sense, and B is not making progress with the support in the Plan.
18. Mrs M’s complaint to us about the last annual review is, in effect, a starting point for a wider complaint about B’s EHC Plan.
19. Following a review, parents have a right of appeal to the SEND Tribunal about their child’s EHC Plan. They can appeal if the Council decides not to change the Plan, and they can appeal if they disagree with any changes the Council makes. The SEND Tribunal is a specialist tribunal which can make its own decisions about a child’s special educational needs and the provision required. The Tribunal’s decisions are binding.
20. I have carefully considered Mrs M’s complaint about the annual review and her dissatisfaction with B’s EHC Plan. I do not consider investigation by us would lead to a different outcome, and not the outcome Mrs M wants, since we have neither the authority nor the expertise to make decisions about B’s special educational needs or provision.
21. Since Mrs M’s complaint is effectively a challenge to B’s EHC Plan, I consider it would be more appropriate for her to use her right of appeal to the SEND Tribunal.
22. Mrs M is also unhappy with the Council’s handling of her complaint. We will not usually investigate a complaint about a council’s complaint handling if the complaint itself is not a matter we can consider.
23. I have decided not to investigate Mrs M’s complaint and to end my involvement. For the avoidance of doubt, I have no views about B's EHC Plan or the April 2023 annual review.

Back to top

Final decision

24. I will not investigate Mrs M’s complaint. I do not consider investigation would lead to a different outcome, and the SEND Tribunal is better placed to resolve disagreements about B’s EHC Plan.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman