Summary: We will not investigate Mr X’s complaint about the Council’s decision following an Education Health and Care Plan annual review. It is reasonable to expect Mr X to appeal to the Tribunal.

The complaint

1. Mr X says the Council delayed in notifying him of its decision following an Education Health and Care Plan (EHC Plan) annual review and he disagrees with its decision.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. 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. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I considered information provided by Mr X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mr X is B’s father. They have an EHC Plan. The Council held an annual review in April 2024. In May 2024, the Council wrote to Mr X to explain it did not intend to immediately amend the EHC Plan. It intended to issue an amended EHC Plan before February 2025 in time for B’s transition to their next education phase. The letter included an explanation of Tribunal appeal rights.
8. Mr X says the Council delayed in issuing its decision following the annual review. He disagrees with its decision. He would like the EHC Plan amended now.
9. If the council decides not to amend an EHC Plan, it must inform the child’s parents or the young person of their right to appeal the decision to the Tribunal. It should do so within four weeks of the annual review. Here it did so two days late. This is not significant enough fault to justify our investigation.
10. There is a right of appeal to the Tribunal against a decision not to amend an EHC Plan following a review or reassessment and it is reasonable to expect Mr X to use that right.

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Final decision

11. We will not investigate Mr X’s complaint because it is reasonable to expect him to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman