Summary: We have upheld this complaint because the Council delayed carrying out an Education Health and Care needs assessment. The Council has agreed to resolve the complaint by offering to make a payment to the complainant to remedy the injustice this caused. We will not investigate the school named by the Council because it would be reasonable for the complainant to use their right of appeal to a tribunal about this matter.

The complaint

1. The complainant, who I will call Miss X, complains that the Council delayed issuing an Education Health and Care (EHC) plan for her child, and failed to name a suitable school in the 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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
4. 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)
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. In March 2022, the Council received a request for an EHC needs assessment for Miss X’s child. It issued the final plan in July 2023. In responding to Miss X’s complaint, the Council apologised for the delay in issuing the final EHC plan, for the number of caseworkers assigned to the case and for raising her hopes about the school that would be named in the plan.
9. We will not investigate Miss X’s complaint about the school named in the EHC plan. This is because it is reasonable to expect Miss X to appeal that decision to the SEND Tribunal. The SEND Tribunal can consider an appeal about the contents of the EHC plan. It was set up to considers appeals against council decisions regarding special educational needs.
10. However, if we were to investigate the other elements of Miss X’s complaint complaint it is likely that we would find fault. Whilst the Council has apologised to Miss X for the fault it identified, I do not consider that it has provided any remedy for the injustice this fault caused Miss X.
11. We therefore asked the Council to offer to make a payment to Miss X of £300 within one month, to reflect the distress caused by the significant delay in issuing the EHC plan and the other issues raised in her complaint.
12. To its credit, the Council agreed to resolve the complaint and has agreed with our recommendation. Therefore, within one month of the date of this final decision, it will offer to make a payment to Miss X of £300.

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Final decision

13. We have upheld this complaint. The Council has agreed to resolve the complaint early by providing an appropriate remedy.

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Investigator's decision on behalf of the Ombudsman