Summary: We will not investigate this complaint about the special educational needs provision for the complainant’s son who has an Education, Health and Care Plan. Some of the complaint is late and there are insufficient grounds to consider it now. If Mrs X wants to challenge the content of her son’s Education, Health and Care Plan, it is a matter for a tribunal. The Council has accepted its communication and complaint handling has been poor. This is not enough to warrant an investigation by the Ombudsman.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained she has been asking for extra support for her son (Y) who has an Education, Health and Care Plan (EHC Plan) since June 2023. Mrs X says the Council took too long to complete an annual review and finalised an EHC Plan without giving her the chance to comment. Mrs X says council officers do not respond to her and have failed to deal with her complaints in a timely manner.

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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 late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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.
6. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact 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 or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

7. 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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How I considered this complaint

8. I considered information provided by the complainant and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. Mrs X says the Council finalised Y’s EHC Plan in October 2023 without giving her the chance to comment. This process started in November 2022 and so Mrs X says the Council took too long. Mrs X says she contacted the Council in June 2023 to ask it to reassess Y’s needs. Mrs X says the Council has not responded and this has left Y in an unsuitable school. Mrs X says the Council has failed to respond to her requests for help and has taken too long to deal with her complaints.
11. In response to Mrs X’s complaint the Council said it carried out a review of Y’s EHC Plan in November 2022. The Council issued an amendment notice in May 2023 with a final EHC Plan issued in October 2023. Given the annual review process should only take 12 weeks, the Council took too long to complete the process.
12. We will not, however, consider this point. This is because the Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem. Any concerns about the time taken to review Y’s EHC Plan following the November 2022 annual review are therefore late. It first became an issue 12 weeks after the annual review – so at the start of 2023. We look at each complaint individually, and on its merits, considering the circumstances of each case. But we do not exercise discretion to accept a late complaint unless there are good reasons to do so. I do not consider that to be the case here. Mrs X could have complained to us much earlier and so we will not investigate.
13. The above process overlaps with when Mrs X says she asked the Council to reassess Y’s needs. Mrs X made this request because she contends his EHC Plan does not contain the correct support. This is not something we will consider. This is because when the Council issued a final EHC Plan in October 2023, it triggered a right of appeal to the SEND Tribunal. This is the mechanism set up by Parliament for parents to challenge the content of an EHC Plan. The Tribunal can say if an EHC Plan should be amended. It was therefore reasonable for Mrs X to use her appeal rights and so we will not investigate.
14. Mrs X says the Council did not give her the chance to comment on the draft EHC Plan. But the Council has set out the process followed. This included an amendment notice, two draft EHCPs, and sending information explaining the right to appeal to the SEND Tribunal. There is not enough evidence of fault here. Also, consideration of this point by the Ombudsman could not give Mrs X the outcome she wants or achieve a worthwhile outcome. The Council has now carried out a further annual review of Y’s EHC Plan and this will trigger a fresh right of appeal. It is reasonable for Mrs X to use her right of appeal.
15. In its responses to Mrs X the Council accepted its communication with her had been poor and it had been slow to respond to her complaints. It accepted a meeting it had promised only took place when Mrs X asked to escalate her complaint. I understand Mrs X’s frustrations and the Council has at least offered a token payment of £100. But it is not a good use of our resources to investigate complaint handling as a standalone issue if we are not going to look at the issue which led to the original complaint. While the poor communication will have been frustrating, it does not represent a personal injustice significant enough to warrant an investigation. We will not therefore consider Mrs X’s complaint.

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Final decision

16. We will not investigate Mrs X’s complaint because:
• Part of it is late.
• Some of it is best considered by the SEND Tribunal.
• The injustice from the other issues is not enough to warrant our involvement.

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Investigator's decision on behalf of the Ombudsman