Summary: We will not investigate this complaint about the Education Health and Care Plan process. This is because the Council has agreed to an appropriate remedy for the delay. If Miss X wants to challenge the content of her son’s Education Health and Care Plan, then it is reasonable for her to appeal to a tribunal.

The complaint

1. The complainant, whom I shall refer to as Miss X, complained about delay in the Education Health and Care Plan (EHC Plan) process for her son. Miss X said the Council had failed to meet the relevant deadlines in the SEN Code of Practice. Miss X is also unhappy with the content of her son’s EHC Plan and how the Council decided this.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’  and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
3. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
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.

Back to top

How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

8. The Council has accepted delay in considering Miss X’s request that it issue her son with an EHC Plan. The 20-week deadline for issuing the EHC Plan was 04 June 2023. The Council did not issue the final EHC Plan until 10 January 2024. A lack of Educational Psychologists (EPs) has contributed to the delay. The failure to issue the EHC Plan within 20 weeks amounts to service failure.
9. We are satisfied the Council has a plan to address this issue. In July 2023, the Council's Cabinet approved an action plan to deal with the issues it is facing because of a lack of capacity in its EP and Special Educational Needs teams. This plan includes increased funding and recruitment.
10. In cases like this we consider a payment of £100 to be a suitable remedy for each month of delay. The Council has agreed to pay £700 for the seven months of delay. This is to recognise the frustration and uncertainty caused. The Council has agreed a suitable remedy and is taking to steps to address the issue at the heart of this complaint. We will not therefore investigate the delay aspect of Miss X’s complaint. The Council should pay the remedy within four weeks of the Ombudsman’s decision.
11. Miss X is also unhappy with the content of her son’s EHC Plan and how the Council decided this.
12. Parents unhappy with the content of an EHC Plan have the right to appeal to the SEND Tribunal. We expect people to use this right unless we consider it unreasonable for them to do so. The Tribunal can say what should be included in an EHC Plan. We have no powers to do this. The Tribunal can give Miss X the outcome she wants. I see no reason Miss X should not use the appeal rights available to her. The content of the EHC Plan is not therefore something we will consider. The way the Council decided the content of the EHC Plan is too closely linked to the content of the EHC Plan itself. We will not therefore investigate Miss X’s complaint.

Back to top

Final decision

13. We will not investigate Miss X’s complaint because the Council has offered a suitable remedy and it is reasonable for Miss X to use her appeal rights.

Back to top

Investigator's decision on behalf of the Ombudsman