Summary: We cannot investigate Ms X’s complaint about the contents of her daughter’s Education Health and Care Plan because Ms X has used her right of appeal to the SEND Tribunal. We will not investigate Miss X’s complaint about delays in the Education Health and Care Plan process because the Council has agreed to apologise to Miss X and pay her £350. We consider this an appropriate remedy and further investigation is therefore unlikely to achieve anything more.

The complaint

1. The complainant, Ms X, complains about the Council’s handling of her daughter’s (Y’s) Education Health and Care (EHC) needs assessment. She says this led to the Council wrongly naming a school in Y’s EHC Plan which cannot meet her needs. She also complains the Council took too long to complete the process and issue the EHC Plan.

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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 provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
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.

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How I considered this complaint

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

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My assessment

8. Ms X disagrees with the contents of the final EHC Plan and has now appealed against this to the SEND Tribunal. We cannot therefore investigate any complaint about the Council’s decision to name the school or the way the Council reached its decision. We also cannot look at the Council’s failure to engage in mediation as this has allowed Ms X to take her appeal to the Tribunal.
9. The Council does however accept fault in the time it took to finalise Y’s EHC Plan. It says the 20-week deadline to complete the process was 9 November 2023 but it did not issue the final EHC Plan until 22 February 2024, three and a half months later. It has explained that a lack of Educational Psychologists contributed to the delay.
10. We are satisfied the Council is taking action to deal with the issues caused by a lack of Educational Psychologists, which is a wider issue affecting councils across the country. We have therefore asked, and the Council has agreed, to the following actions to remedy Ms X’s complaint:
• The Council will apologise to Ms X for the delay in the EHC Plan process;
• The Council will pay Ms X £100 for each month of delay. The delay in this case is three and a half months, so the Council will pay Ms X £350. It should make the payment to Ms X within four weeks of this decision.
11. I consider the remedy agreed by the Council is suitable and that it is taking steps to address the issue at the heart of this complaint. It is therefore unlikely investigation would achieve anything more for Ms X.

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Final decision

12. We will not investigate this complaint. This is because Ms X’s concerns about the contents of the EHC Plan fall outside our jurisdiction to investigate and the Council has agreed a suitable remedy for the injustice caused by its delay in issuing the EHC Plan.

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Investigator's decision on behalf of the Ombudsman