Summary: We will not investigate Ms X’s complaint about delays in her child’s Education, Health and Care (EHC) annual review process and her disagreement with the content of her child’s EHC Plan. This is because she has a right of appeal to a tribunal about the content of the plan. The Council has apologised for the delays in the annual review process. If Ms X considers the delays mean her child has missed out on provisions, the tribunal can consider this as part of an appeal.

The complaint

1. Ms X complains about delays in her child, Y’s, Education, Health and Care (EHC) Plan annual review process. She also says the final amended EHC Plan does not include her representations and the listed provisions are not suitable for her child.

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The Ombudsman’s role and powers

2. 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)
3. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)

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How I considered this complaint

4. I considered information provided by the complainant @and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. We will not investigate this complaint. The Council finalised Y’s EHC Plan in January 2024 which gave Ms X a right of appeal to the tribunal about the content of the plan. It is reasonable for her to use this right if she disagrees with the provisions listed in Y’s plan.
7. We will also not investigate the delays in the annual review process. The Council has already apologised to Ms X for this which is sufficient to remedy any frustration and distress caused. If Ms X considers the delay means Y has missed out on specialist provisions, she can raise this with the tribunal as part of an appeal.

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Final decision

8. We will not investigate ’s complaint because there is a right of appeal to a tribunal and it is reasonable for Ms X to use it.

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Investigator's decision on behalf of the Ombudsman