Summary: We have upheld this complaint because the Council delayed issuing a final Education Health and Care plan after it carried out an annual review. The Council has agreed to resolve the complaint by making a payment to the complainant to remedy the distress this caused. We cannot investigate other matters because the complainant has used their right of appeal to a tribunal.

The complaint

1. Dr X complains about how the Council managed the annual review of her daughter’s Education Health and Care (EHC) plan. Dr X says the Council delayed carrying out the review and issued a final EHC plan that could not meet her daughter’s needs. Dr X also complains about how the Council dealt with her daughter’s education going back several years.

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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. 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)
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.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted)

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How I considered this complaint

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Dr X’s daughter has had an EHC plan in place since 2018.In 2022, the Council carried out an annual review and issued a final EHC plan. Dr X disagreed with the contents of the EHC plan and so appealed to the SEND Tribunal. Prior to the tribunal hearing, Dr X’s daughter started University and so the Council ceased the EHC plan, and the tribunal hearing was cancelled.
10. We will not investigate Dr X’s complaint about how the Council has dealt with her daughter’s education prior to 2022. This is because these matters could have been raised with the Council and then the Ombudsman sooner.
11. We cannot investigate the contents of Dr X’s daughter’s EHC plan. This is because Dr X used her right of appeal to the SEND Tribunal. When a parent has appealed, the Ombudsman has no jurisdiction to consider related matters from the point at which the appeal rights were engaged to the point at which the SEND Tribunal issues its decision.
12. The courts have held that the above restriction applies to anything related to the matters at issue in the appeal. It includes how the Council reached its initial decision, the Council’s conduct during the appeal process, and the information it provided to the Tribunal. The education provided to the appellant’s child during the appeal is also generally caught by this exception. We also cannot look at any injustice claimed because of the decision appealed. 
13. Therefore, the only part of Dr X’s complaint we can consider is the delay in issuing a final EHC plan. The Council accepted that there was delay and apologised to Dr X for this. However, if we were to investigate this element of Dr X’s complaint it is likely we would find fault. This is because the delay by the Council is likely to have caused Dr X distress because it frustrated her right of appeal to the SEND Tribunal.
14. We therefore asked the Council offer to make a payment to Dr X of £300 to remedy the distress caused by the delay in issuing the EHC plan. To its credit, the Council agreed to resolve the complaint and has agreed with our recommendation and will offer to make the payment within one month.

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Final decision

15. We have upheld this complaint due to delays issuing an EHC plan. The Council has agreed to resolve the complaint early by providing an appropriate remedy. We cannot investigate other maters because Dr X appealed to a tribunal.

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Investigator's decision on behalf of the Ombudsman