Summary: We will not investigate Miss X’s complaint about delays in the Education, Health and Care process or the education of her child, Y, because Miss X has a right of appeal to the SEND Tribunal about the content of Y’s Education, Health and Care Plan.

The complaint

1. Miss X complains about:
1. delays in the Education, Health and Care (EHC) Plan process regarding her child, Y;
2. the content of Y’s EHC Plan including the type of provision named; and
3. the Council’s failure to provide education to Y.
2. Miss X says the matter has caused her distress and frustration and resulted in Y missing out on education.

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The Ombudsman’s role and powers

3. 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)
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 the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Miss X has a child, Y, who has special educational needs and is below compulsory school age.
8. In September 2022, Miss X asked the Council to assess Y for an EHC Plan. The Council decided not to assess Y. In December 2022, the Council decided to complete an EHC needs assessment of Y. After the assessment, the Council decided to make an EHC Plan for Y. It sent Miss X a draft copy of the EHC Plan in summer 2023.
9. In January 2024, Miss X complained to the Council. She said Y should have started reception in September 2023, but Y’s EHC Plan had not been finalised and no suitable placement had been found. She said Y’s needs had changed since the EHC needs assessment was completed.
10. The Council finalised Y’s EHC Plan several days later, naming a type of provision (mainstream) but not a specific placement.
11. The Council responded to Miss X’s complaint and accepted there was a delay in finalising Y’s EHC Plan. It explained it had consulted with schools to find a placement for Y. School A said it could meet Y’s needs, but Miss X had requested Y be deferred for a year to start reception in September 2024, but school A declined the request. The Council said it would continue to consult with schools to find a placement for Y.
12. Following the Council’s final response, Miss X told us the Council declined to mediation and signposted her to the SEND Tribunal about the content of Y’s EHC Plan.
13. We will not consider Miss X’s complaint because she has a right of appeal to the SEND Tribunal about the content of Y’s EHC Plan, including the named placement and provision, and it is reasonable for her to use that right. We cannot determine the extent of any injustice caused by any delays in the EHC process until the Tribunal process has ended.

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Final decision

14. We will not investigate Miss X’s complaint because she has a right of appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman