Summary: We will not investigate Mr X’s complaint about the Education Health and Care Plan process for his son. This is because there is no worthwhile outcome achievable by an investigation. If Mr X wants to challenge the content of his son’s Education Health and Care Plan, it is reasonable for him to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, whom I shall refer to as Mr X, complained about the time taken to issue his son with an Education Health and Care Plan (EHC Plan). Mr X is unhappy with the content of the EHC Plan and says the Council has not responded to his request for mediation. Mr X says his son has missed out on a full-time education.

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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:

• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal; or
• there is no worthwhile outcome achievable by our investigation.

(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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. 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

8. I considered information provided by the complainant.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. In response to Mr X’s complaint the Council accepted it took too long to deal with his request for an EHC Plan. The Council offered £500 in recognition of the delay. The Ombudsman recommends a payment of £100 for every month of delay in such cases. The amount offered by the Council is therefore in line with the amount we would recommend if we investigated. We have also considered previous complaints about this council and are satisfied with the steps it is taking to deal with delays in the EHC Plan process. An investigation is not therefore appropriate because it would not achieve anything more.
11. Mr X is also unhappy with the content of his son’s EHC Plan and says the Council has not responded to his request for mediation. We will also not investigate this part of Mr X’s complaint.
12. Parents who are unhappy with the content of their child’s EHC Plan have a right of appeal to the SEND Tribunal. It is the mechanism established by Parliament for parents to challenge such decisions. The Tribunal can decide if an EHC Plan should be amended. That is not a decision the Ombudsman can take. It is therefore reasonable for Mr X to use his right of appeal and so we will not investigate.
13. It is disappointing if the Council has not responded to Mr X’s request for mediation. However, this does not prevent Mr X from appealing, and he should tell the Tribunal what has happened. So, while I understand Mr X’s frustrations, the injustice from any failure to respond to his request is not significant enough to warrant us investigating.
14. If Mr X has concerns about the education provided to his son, then he needs to raise this with the appropriate body. This is either the school he attended before the EHC Plan was issued, or the Council to consider concerns about what happened after it issued the EHC Plan. The actions of the school are not something we can consider. But Mr X could come back to the Ombudsman once this issue has completed the Council’s complaints process.

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Final decision

15. We will not investigate Mr X’s complaint because an investigation would not achieve a worthwhile outcome and it is reasonable for Mr X to use his appeal rights.

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Investigator's decision on behalf of the Ombudsman