Summary: We will not investigate Ms X’s complaint about the Council’s education, health and care plan review for her son. This is because Ms X has used her right of appeal to challenge the contents of the plan and any injustice from the Council’s delay is not significant enough to warrant investigation.

The complaint

1. The complainant, Ms X, complains about the way the Council dealt with her son’s education, health and care plan (EHCP) review. She says it neglected her son’s needs, delayed in issuing the final EHCP and failed to properly consult her about which school she wanted him to attend.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. We may decide to investigate if we consider it would be unreasonable to expect the person to appeal but cannot investigate if the person has already appealed. (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 Ms X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Ms X confirms that she has appealed against the final EHCP issued by the Council and that following discussion with the Council the matter is now resolved. He son is therefore due to attend his preferred school from September 2023 and the Council has agreed to a level of provision under the EHCP which she is happy with.
8. Because Ms X has appealed against the EHCP we cannot investigate any complaint about how it reached its decisions on its contents. We cannot therefore investigate whether the Council properly consulted Ms X on her choice of school or provide any remedy for the impact this had on her son.
9. I note Ms X refers in her correspondence to delay by the Council in finalising the EHCP and while this issue is separate from the contents of the plan the length of the delay does not cause such significant injustice that we should investigate the matter further.

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Final decision

10. We will not investigate this complaint. This is because Ms X has appealed against the EHCP and any delay in the process of finalising the plan has not caused significant enough injustice to warrant further investigation.

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Investigator's decision on behalf of the Ombudsman