Summary: We will not investigate this complaint about delays in the Education, Health and Care Plan process. This is because it is unlikely an investigation would lead to a different outcome. Mr X has now appealed to the First-tier Tribunal (Special Educational Needs and Disability). This places the content of the Education, Health and Care Plan and any ongoing provision outside our jurisdiction.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained about delay in the Education, Health and Care Plan (EHC Plan) process for his daughter (Y). Mr X says the delay left Y out of education and there has been an impact on the whole family.

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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 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:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

4. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. 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)
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.

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How I considered this complaint

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

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What I found

Background

9. Mr X asked the Council to assess his daughter for an EHC Plan in April 2023. Mr X says his daughter stopped attending school at around the same time.
10. If a council decides to issue an EHC Plan, the whole process should take no more than 20 weeks. The Council should have therefore issued a final EHC Plan by 26 August 2023.
11. As part of the EHC Plan process, councils need to seek advice from an Educational Psychologist (EP). There is a national shortage of EPs which often causes delays in the EHC Plan process.
12. In this case, Mr X says the Council received EP advice in June 2023. But it still took until March 2024 to issue an EHC Plan. This was seven months late. The EHC Plan named a type of establishment – Specialist ASD Provision – a decision Mr X has appealed to the SEND Tribunal.
13. The Council has accepted it took too long to complete the process and that its communication with Mr X was poor. It offered a total remedy payment of £950.

Assessment

14. In deciding whether to investigate a complaint we need to consider various tests. These include the level of fault and injustice. We need to consider any remedies a council has already offered. If an investigation would not achieve a significantly different outcome, we will not normally investigate. We also need to consider if there are any legal reasons why we can or should not investigate.
15. The Council was at fault because it took too long to complete the EHC Plan process. This will have caused frustration, distress and uncertainty to Mr X and his family. The delay also frustrated Mr X’s right to appeal to the SEND Tribunal – an option he has now exercised.
16. If the Council had adhered to the timescales in the SEN Code of Practice, it should have issued an EHC Plan by August 2023. What we cannot say, on the balance of probabilities, is that if the Council had issued the EHC Plan earlier, that it would have been different to the one eventually issued. This is particularly the case as it was based on EP advice obtained much earlier on in the process. The outcome would therefore have been the same – an EHC Plan naming Specialist ASD provision and Y would still have been out of school. Mr X could have appealed sooner, but we cannot say there was any lost provision because of the delay.
17. Once the final EHC Plan was issued and appeal rights were engaged, the content of the EHC Plan and the provision put in place for Y are outside our jurisdiction. As explained in paragraph 4, once a parent has used their right of appeal, the matter appealed, and any closely related matters are not matters we can consider.
18. The issue for us is therefore the delay in issuing the EHC Plan and what remedy is appropriate for the frustration, uncertainty, and distress it caused – including having to wait to appeal. The Council has offered Mr X £950. This includes an acceptance of poor communication.
19. We look at each case individually, and on its merits. But if we were to investigate this complaint it is unlikely we would recommend a significantly higher financial remedy. The Council has already reassured us in other cases of the steps it is taking to address delays in the EHC Plan process. We have accepted the Council’s plans and so further service improvement recommendations would be unlikely. Because an investigation would be unlikely to achieve a different outcome or achieve anything more, we will not investigate.

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Final decision

20. We will not investigate Mr X’s complaint. It is unlikely an investigation would lead to a different outcome and an appeal to the SEND Tribunal places ongoing matters outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman