Summary: We will not investigate Miss X’s complaint about the Council’s failure to review her son’s Educational Health and Care Plan between 2016 and 2021. This is because we cannot say the issue caused Miss X or her son significant injustice. We will not investigate her complaint about the support listed in her son’s Plan because it would have been reasonable for her to appeal to the SEND Tribunal.

The complaint

1. The complainant, Miss X, complains the Council failed to carry out an annual review of her son’s Education Health and Care (EHC) Plan between 2016 and 2021. The Council completed a review in 2022 but Miss X is unhappy this did not result in any speech and language or occupational therapy. Miss X believes the Council should improve its services and make a payment to her son.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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.

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How I considered this complaint

6. I considered information provided by Miss X and the Ombudsman’s Assessment Code. I considered Miss X’s comments on my decision dated 7 May 2024 and have reached a new decision on her complaint.

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My assessment

7. The Council issued Miss X’s son an EHC Plan in 2016 but did not review the plan until 2022. Miss X says she was unaware the Council had a duty to review the plan each year and only found this out during the annual review process in 2023. She believes that had the Council carried out reviews between 2016 and 2022 it could have referred her son for further support, sooner. She also says the lack of support caused her stress.
8. Miss X’s son is electively home educated, which means Miss X chooses to have him educated at home rather than attending a school or other educational setting. In these circumstances, while the Council has a duty to carry out annual reviews we would expect that if a child or young person’s needs have changed, or if they feel the support previously agreed and listed in their EHC Plan has become insufficient, the person responsible for educating them would contact the council to ask for more help. But I have seen nothing to show Miss X requested any additional help between 2016 and 2022. In fact, the Council says it contacted Miss X in May 2020 to check in with her and Miss X raised no concerns. It then tried to call her again sometime later and left messages which Miss X did not return.
9. In any event, some three years have now passed since the final missed annual review in 2021 and it is simply not possible for us to speculate what additional provision the Council may have put in place had it completed the annual reviews at the time. Miss X says the Council has now referred her son for occupational therapy but this referral took place as a result of the 2023 review rather than the review completed in 2022; we could not therefore say it would have referred her son for this sooner, had it completed the annual reviews as required. There is therefore no basis for us to say any fault caused Miss X or her son significant injustice or to recommend a financial remedy as Miss X would like.
10. Miss X is also unhappy about the lack of therapy provision within her son’s amended EHC Plans issued in 2022 and 2023. But any decisions on the provision set out in his Plan carried a right of appeal to the SEND Tribunal which it would have been reasonable for her to use. Miss X did not need to know what provision may have been available in order to question whether the provision listed in the Plan was sufficient; if Miss X felt the support her son was entitled to was not enough to meet his special educational needs it would have been reasonable for her to appeal.

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Final decision

11. We will not investigate Miss X’s complaint about the Council’s failure to review her son’s EHC Plan because we cannot say this caused her son significant injustice. We will not investigate her complaint about the lack of speech and language therapy and occupational therapy because it would have been reasonable for her to appeal.

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Investigator's decision on behalf of the Ombudsman