Summary: We will not investigate this complaint regarding delays in issuing an Education Health and Care plan as further investigation would not lead to a different outcome. It is reasonable for Mrs X to use her right of appeal to the tribunal.

The complaint

1. Mrs X complained the Council delayed issuing her child Y's, Education Health and Care (EHC) Plan. She said that meant Y missed out on a place in a suitable school for 2024, losing a year of specialist education.
2. Mrs X also complained the Council’s Educational Psychologist’s (EP) assessment was incomplete and did not correctly reflect Y’s special needs. She said because of this she had to commission a private assessment.
3. Mrs X said the delay has caused avoidable distress. She wants the Council to apologise and reimburse the costs of the private EP report. She has asked how the Council will prevent similar delays for other families in future.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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.
7. 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 further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

10. In the Council’s complaint response, it accepted there were delays in it consulting with schools after it had issued the draft EHC plan. It said that delayed it issuing Y’s final EHC Plan. It offered an apology as well as financial remedy of £500 for delaying the plan and £300 for Mrs X’s distress.
11. The Council should have finalised Y’s EHC Plan by 15 February. It did not finalise the EHC Plan until July 2024. That is a delay of five months.
12. The remedy offered is in line with our remedy’s guidance. It is unlikely an investigation would achieve anything more or lead to a different outcome.
13. In its final EHC Plan the Council named school places for Y at school A for 2024 and school B for 2025. Mrs X said school A is not suitable as it will not meet Y’s need.
14. Mrs X has a right to appeal to the SEND Tribunal to review school A’s suitability for Y. Therefore, we will not investigate this complaint.
15. Mrs X said she needed to commission a private EP report because the Council’s assessment did not reflect Y’s full needs. Mrs X said she wants the Council to reimburse the costs for this privately commissioned EP report.
16. There was no failing on the Council to complete the necessary assessment therefore, we will not investigate this complaint. If Mrs X was unhappy with the Council’s EP assessment, and the resulting EHC plan, then it was reasonable to appeal to the SEND tribunal. The tribunal can direct the Council to complete further assessments if these are needed.

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Final decision

17. We will not investigate Mrs X’s complaint because she has a right of appeal to the SEND tribunal about the content of the final EHC Plan and it is reasonable for her to use it. We will not investigate the complaint regarding delays further as it is unlikely an investigation would lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman