Summary: The Council was at fault for a delay in deciding the support Mrs X’s daughter should receive for her special educational needs. It will make a symbolic payment to Mrs X to recognise her injustice. However, we cannot investigate Mrs X’s complaint about the quality of the Council’s assessment of her daughter’s needs, because this will be a matter for the SEND Tribunal.

The complaint

1. The complainant, whom I refer to as Mrs X, complains about how the Council has decided special educational needs support for her daughter, Y.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. I considered information from Mrs X and the Council. Both had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

7. A child with special educational needs may have an education, health and care (EHC) plan. This document sets out their needs and what arrangements should be made to meet them.
8. Statutory government guidance (the ‘SEND code of practice’) says that, if a council decides to amend a child’s EHC plan following an annual review, it must write to the child’s parent within four weeks and tell them. It must then issue a new plan within a further eight weeks.
9. The Council held Y’s annual review in early June 2024 and wrote to Mrs X later in the month to tell her it intended to amend Y’s EHC plan. It then had until September to finalise the amended plan.
10. The Council wrote a draft plan in June but did not share this with Mrs X. It did not do so until late November. It is now considering Mrs X’s views on the draft plan.
11. The Council was at fault for the delay in sending out the draft plan. And this likely caused Mrs X an injustice, both in uncertainty and because it has delayed her right to bring any disagreements she has with the final plan to the SEND Tribunal.
12. The Council should now take action to remedy the injustice it has caused.
13. Mrs X also complains about how the Council has arrived at its views in Y’s draft plan. She particularly refers to the way a needs assessment was carried out.
14. The quality of assessments undertaken and the Council’s ultimate decisions on Y’s support are matters which will be appealable to the SEND Tribunal when Y’s final EHC plan is issued. My role cannot overlap that of the Tribunal, and therefore I cannot investigate these matters.

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Agreed action

15. Within four weeks, the Council has agreed to make a symbolic remedy payment to Mrs X of £400 to recognise Mrs X’s likely injustice from the delay to Y’s EHC plan.
16. The Council will provide us with evidence it has done this.

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Final decision

17. The Council was at fault, and this caused Mrs X an injustice.

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Investigator's decision on behalf of the Ombudsman