Summary: We will not investigate this complaint about the education placement named within Miss X’s child’s Education, Health, and Care (EHC) Plan. This is because Miss X has a right of appeal to the SEND Tribunal it would be reasonable to use. We will not investigate the process undertaken by the Council to amend the EHC Plan as there is not enough evidence of fault to warrant investigation.

The complaint

1. Miss X complains:
• the education setting named on the EHC plan is not suitable for her child,
• the Council have not followed the correct process for amending her child’s Education, Health, and Care (EHC) Plan,
2. Miss X also complains the Council are acting unlawfully in its handling of her complaint.

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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.
5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

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How I considered this complaint

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

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My assessment

8. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the SEND Tribunal or the Council can do this. 
9. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. Within the last year the Council have reviewed Miss X’s child’s EHC Plan.
10. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176).
     
11. It took the Council five weeks to notify Miss X of its decision to amend the EHC plan following the review meeting. However, the date of the review meeting to the EHC Plan being finalised took 11 weeks. Therefore, we cannot state there is delay in issuing an appealable decision.
     
12. The Council have apologised for the one-week delay in notifying Miss X.
13. Miss X asks for a reassessment of the plan as she is unhappy with the educational placement listed. The Council can refuse a request for a reassessment if less than six months have passed since a previous EHC needs assessment.
14. There is a right of appeal to the SEND Tribunal against:

• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

15. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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Final decision

16. We will not investigate Miss X’s complaint about the educational placement listed in her child’s EHC Plan because she has a right of appeal to the SEND Tribunal it would be reasonable to use.
17. We will not investigate the time taken in the EHC Plan review process as there is not enough evidence of fault by the Council to warrant investigation.
18. It is not good use of public funds to investigate complaint handling where we are not investigating the substantive matter.

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Investigator's decision on behalf of the Ombudsman