Summary: We upheld Mrs X’s complaint about how the Council handled her child’s Education and Health Care Plan. The Council agreed to resolve the complaint early by paying Mrs X a symbolic payment to acknowledge the injustice caused.

The complaint

1. Mrs X complains the Council failed to properly involve her in the review and amendment of her child’s (Y) Education, Health and Care Plan (EHCP). She says the Council did not invite her to the annual review and relied on outdated information when preparing the draft EHCP. She says it failed to consider the information she provided, including her request for a personal budget. She also says the Council finalised the EHCP more than a week before the agreed deadline without giving her an opportunity to comment or challenge it. She says the Council shared the EHCP which contained out-of-date information about Y’s needs with their new school. She also complains about delays, poor communication, and a lack of meaningful engagement throughout the process. Mrs X wants the Council to review Y’s EHCP to reflect their needs including a personal budget and review how it handled her complaint.

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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. 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)
4. 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.
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and s34H(1), as amended)

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How I considered this complaint

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

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My assessment

8. Mrs X was not happy with the content and support outlined in Y’s EHCP. The Ombudsman will not usually investigate when someone had a right to appeal. I consider it would have been reasonable for Mrs X to have appealed to the SEND Tribunal if she was not happy with the final EHCP. Many of the issues raised by Mrs X are not separable from the matters that could have been appealed.
9. During its complaints process the Council partially upheld Mrs X’s complaint. It said the requested personal budget was not linked to provision in Y’s EHCP; therefore, it had no legal duty to agree it. It issued an apology to Mrs X for the delays responding to her complaint. However, there were significant avoidable delays, and we do not consider the time, trouble and uncertainty Mrs X experienced was remedied.
10. We therefore asked the Council to consider remedying the injustice caused to Mrs X by its delay in resolving her complaint.

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Agreed action

11. To remedy the injustice caused, within four weeks of the final decision, the Council has agreed to:
• Make a symbolic payment of £250 for the avoidable distress caused by the uncertainty and for the time and trouble taken for Mrs X to get a response to her complaint.

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Final decision

12. We have upheld this complaint, and the Council has agreed to resolve it early by providing a proportionate remedy for the injustice caused to Mrs X.

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Investigator's decision on behalf of the Ombudsman