Summary: We will not investigate this complaint about how the Council dealt with an annual review of a child’s Education Health and Care plan. This is because there is a right of appeal against the school and SEN provision named in the plan. There is no evidence of fault in how the Council considered a recent request for a personal budget and a complaint about a previous personal budget request is made late.

The complaint

1. The complainant, who I will call Mr X, complains that the Council failed to name his preferred school in his child’s Education Health and Care (EHC) plan. He also complains that the Council refused his request for a personal budget to meet the Special Educational Needs (SEN) provision detailed in the EHC plan and ignored another request for a personal budget he made before the first plan was issued in 2022.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. 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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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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. The Council carried out a review of Mr X’s child’s EHC plan. It issued a draft plan and then consulted with several schools including those requested by Mr X. It considered a request from Mr X for a personal budget so he could commission SEN provision privately but refused after consideration at panel. The Council issued a final plan naming a mainstream school with no personal budget and stating that SEN provision could be met at school.
9. I will not investigate Mr X’s complaint about the school named in Section I of the final plan or the SEN provision named in Section F of the plan. This is because Mr X has a right of appeal to the SEND Tribunal against these sections, which it is reasonable for him to use.
10. I will not investigate Mr X’s complaint that the Council refused his request for a personal budget in 2023. This is because there is insufficient evidence of fault by the Council. It considered Mr X’s request alongside relevant information and fully explained its reasons for refusing his request. With the absence of fault, the Ombudsman cannot question the merits of the decision made by the Council.
11. I will not investigate Mr X’s complaint that his request for a personal budget was ignored in 2022. This is because these events happened too long ago and I see no good reason why Mr X could not have approached the Ombudsman sooner.

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Final decision

12. We will not investigate Mr X’s complaint because it is reasonable for him to use his right of appeal to a tribunal, there is insufficient evidence of fault and part of his complaint is made late.

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Investigator's decision on behalf of the Ombudsman