Summary: We will not investigate this complaint about the Education Health and Care Plan process. The complainant has appealed to a tribunal and so the content of the plan is not something we can consider. Any injustice caused by delay in issuing the plan cannot be quantified until the outcome of the appeal is known.

The complaint

1. Mrs X complained the Council delayed issuing her daughter with an Education Health and Care Plan (EHC Plan). Mrs X is unhappy with the EHC Plan the Council has now issued. Mrs X says the Council’s actions delayed her right of appeal to the SEND Tribunal and her daughter is missing out on important support. Mrs X is also unhappy with the time the Council took to deal with her complaint.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (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.

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How I considered this complaint

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

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My assessment

7. In its response to Mrs X’s complaint the Council accepted it took too long to issue her daughter’s EHC Plan. It noted Mrs X was unhappy with the content of the EHC Plan and that she had appealed to the SEND Tribunal. The Council said the Tribunal would consider the content of the EHC Plan and so it would not consider her complaint further.
8. We cannot investigate the contents of the final EHC plan the Council issued because it is subject to an appeal to the SEND Tribunal. This places it outside of our jurisdiction.
9. Delay in the EHC Plan process and frustrated appeal rights are something we can consider. But until Mrs X’s appeal to the SEND Tribunal is complete, we cannot quantify the injustice any delay by the Council has caused. We will not look at complaint handling as a standalone issue if we are not looking at the issue which led to the original complaint.
10. Once the tribunal process is complete, Mrs X can ask the Council to consider her complaint further. If she is unhappy with its response, she can bring her complaint back to the Ombudsman. We can then assess her complaint and decide if we should investigate.

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Final decision

11. We will not investigate Mrs X’s complaint because she has appealed to the SEND Tribunal. Any injustice caused by the delay issuing the EHC plan cannot be quantified until the appeals process is complete.

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Investigator's decision on behalf of the Ombudsman