Summary: We will not investigate this complaint about the Council’s actions following a delay in issuing an Education Health and Care Plan. This is because it is reasonable for the complainant to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, Mrs X, complained about the Council’s actions following a delay in issuing her daughter with an Education Health and Care Plan (EHC Plan). Mrs X is unhappy the Council has not offered a remedy other than a payment to recognise the delay.

Back to top

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 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.

Back to top

How I considered this complaint

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

Back to top

My assessment

6. Mrs X previously complained to the Ombudsman about delay in issuing her daughter with an EHC Plan. We recommended a payment of £100 for every four weeks of delay. The Council has complied with that remedy.
7. Mrs X has asked the Council to consider an extra remedy. This is because in the Council’s original response to Mrs X’s complaint it said:

“where an EHC Plan is agreed, if there is any missed special educational provision included in final plan that been missed due to statutory 20-week timescales not being adhered to and consider an appropriate remedy. This can be in the form of a financial payment or catch-up provision provided following a discussion with the parent as to what is most appropriate.”

8. The Council has declined an extra remedy because it says the delay has not disadvantaged Mrs X’s daughter. It says there is no missed provision to remedy.
9. We will not start an investigation into Mrs X’s complaint. The reasons for this are below.
10. The Council has complied with the remedy in our original decision. There is no outstanding remedy for us to consider.
11. We did not recommend a remedy for an estimated loss of provision because we would expect a child’s final EHC Plan to reflect their needs as they are at the time the Council issues the EHC Plan; not as they were when the Council should have issued the EHC Plan. We could not say what provision the Council would have included had it issued the EHC Plan on time. We could not say an assessment of a child’s needs would have reached the same conclusion if it had taken place earlier. This is because the assessment process takes account of the latest evidence relating to the child’s present circumstances, rather than looking at the child’s situation at the point when the Council should have originally issued the EHC Plan.
12. If Mrs X thinks her child requires extra support which is not reflected in the final EHC Plan, then she can ask for mediation. Ultimately, Mrs X has a right of appeal to the SEND Tribunal. This is the method Parliament has set up for parents to challenge decisions about their child’s EHC Plan. We expect parents to use this right when available. As an expert, impartial body, it can decide if any extra provision should be included in the EHC Plan. This is not a decision we can take and so it is reasonable for Mrs X to appeal.

Back to top

Final decision

13. We will not investigate Mrs X’s complaint because it is reasonable for her to appeal to the SEND Tribunal.

Back to top

Investigator's decision on behalf of the Ombudsman