Summary: We will not investigate Mrs X’s complaint the Council failed to send her a decision notice letter providing her with a right to appeal the content of her child, Y’s, Education, Health and Care Plan. Mrs X can ask a Tribunal to consider a late appeal, and further investigation is unlikely to achieve any additional outcome.

The complaint

1. Mrs X complained the Council failed to send her a decision notice letter providing her with a right to appeal the content of her child, Y’s, Education, Health and Care Plan in December 2023.
2. Mrs X says the matter frustrated her right to appeal to the SEND Tribunal.
3. Mrs X wants the Council to re-send the decision letter.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), 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. 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).

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How I considered this complaint

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

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My assessment

9. In October 2023, the Council made a final EHC Plan for Mrs X’s child, Y. It sent a decision letter alongside the EHC Plan informing Mrs X of her right to appeal the content of the EHC Plan to the SEND Tribunal. The Council also told Mrs X it intended to update the EHC Plan shortly once it found suitable educational provision for Y.
10. In early December 2023, the Council sent Mrs X an updated final EHC Plan. However, it did not send a copy of the decision letter informing Mrs X of her right to appeal the content of the new final EHC Plan to the SEND Tribunal.
11. Mrs X said she realised in February 2024 she had not received the decision letter when she decided she wished to appeal to the SEND Tribunal about the content of the EHC Plan. She complained to the Council in early March 2024.
12. The Council responded in April 2024. It apologised for failing to send the decision letter and sent a copy to Mrs X, but the decision letter was dated December 2023. Mrs X said she was unable to appeal to the SEND Tribunal because the time to launch an appeal was two months after the date on the decision letter.
13. In September 2024, the Council started the annual review process for Y’s EHC Plan.

Analysis

14. We will not investigate this complaint. Mrs X was aware of the existence of the SEND Tribunal and appeals process in October 2023 when the Council sent the original final EHC Plan and decision letter.
15. While the Council did not send Mrs X a new decision letter in December 2023, once Mrs X was aware of the fault, she could have asked the SEND Tribunal to consider an appeal at that time without the decision letter.
16. In addition, once the Council sent the decision letter in April 2024, Mrs X could have asked the SEND Tribunal to consider a late appeal and explained the circumstances at that time.
17. The SEND Tribunal has discretion to decide under what circumstances to accept an appeal, including without a decision letter, or late appeals. I consider it is reasonable to expect Mrs X to have appealed to the SEND Tribunal, and we will not investigate this complaint.
18. The Council also apologised for failing to send Mrs X the decision letter. A review of Y’s EHC Plan is also ongoing. This will carry a new right of appeal.
19. Therefore, further investigation is unlikely achieve any additional outcome, and we will not investigate this complaint.

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Final decision

20. We will not investigate Mrs X’s complaint because she can ask a Tribunal to consider a late appeal, and because further investigation is unlikely to achieve any additional outcome.

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Investigator's decision on behalf of the Ombudsman