Summary: We will not investigate Mr X’s complaint about delay after the annual reviews of his children’s Education Health and Care Plans. This is because the delay did not cause a personal injustice significant enough to warrant investigation. If Mr X wants to challenge the content of his children’s Education Health and Care Plans, he now has a right of appeal to a tribunal.

The complaint

1. The complainant, Mr X, complained about delay following the annual reviews of his children’s Education Health and Care Plans (EHC Plan(s)). Mr X said the Council failed to meet the timescales in the SEN Code of Practice. Mr X said the delay frustrated his right to appeal the content of the EHC Plans. Mr X is unhappy his children’s EHC Plans do not contain amendments for the current academic year. Mr X also says some of the provision in the EHC Plans is not being delivered.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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 provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (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. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)

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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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What I found

Annual reviews

9. Councils must arrange for EHC Plans to be reviewed at least once a year to make sure they are up to date. A final EHC Plan must be issued within 12 weeks of the review meeting.
10. Councils must review and amend EHC Plans in enough time before a child or young person moves between key phases of education. This allows planning for and, where necessary, commissioning of support and provision at the new institution. The review and any amendments must be completed by 15 February in the calendar year in which the child is due to transfer into or between school phases.

Assessment

11. The Council reviewed Mr X’s children’s EHCPs on 29 September and 06 October 2023. To comply with the relevant SEN regulations, the Council had to:
• Complete the review process by 15 February 2024. This is because Mr X’s children are moving between school phases.
• Issue the revised EHC Plans 12 weeks after the reviews. The respective deadlines were therefore 22 and 29 December 2023.
12. The Council failed to meet the 12-week deadline. But the Council did issue revised EHC Plans by 14 February. So, while there was some fault by the Council, the injustice from around six weeks of delay is not significant enough to warrant our involvement.
13. Mr X says because of the delay there was not an opportunity to discuss the content of the EHC Plans. Mr X is unhappy some changes have not been made. We could never say that if it was not for the delay the content of the EHC Plans would have been different. But if Mr X is unhappy with the content of the EHC Plans, he now has a right to appeal to the SEND Tribunal. We expect parents to use this right to challenge the content of an EHC Plan. It is the mechanism established by Parliament for parents to challenge such decisions. The SEND Tribunal can say if the Council should make changes to an EHC Plan. This is not something we can do. It is therefore reasonable for Mr X to use his right of appeal.
14. Mr X has also raised concerns about provision set out in his children’s EHC Plans not being delivered. This is something Mr X needs to raise directly with the Council. Once he has completed the Council’s complaints process, he could come back to the Ombudsman, and we would decide whether to investigate.

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Final decision

15. We will not investigate Mr X’s complaint because the identified fault did not cause a significant personal injustice. It is reasonable for Mr X to use his right of appeal if he wants to challenge the content of his children’s EHC Plans.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman