Summary: We have discontinued our investigation into Mrs X’s complaint about the delay in finalising her son’s Education, Health and Care plan. The Council has already offered a suitable remedy for the delay, so further investigation is unlikely to lead to a different outcome. We cannot investigate Mrs X’s complaint about her son’s lack of education, because this was a direct consequence of the Council’s decision to name his school in his plan. Mrs X was given a right of appeal to the Tribunal about this matter, and it was reasonable to expect her to use that right.

The complaint

1. Mrs X complains about the delays in finalising her son Y’s Education, Health and Care (EHC) plan, the lack of placement at the start of term, the absence of alternative provision and the failure to deliver the provision specified in the plan.

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The Ombudsman’s role and powers

2. 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 further investigation would not lead to a different outcome, or if there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. The law says we cannot normally investigate a complaint when someone had a right of appeal to a tribunal about the same matter, or could have taken it to court. However, we may decide to investigate if we consider it would have been unreasonable to expect the person to use these rights. (Local Government Act 1974, sections 26(6)(a) and 26(6)(c), 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 Tribunal in this decision statement.

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How I considered this complaint

5. I considered evidence provided by Mrs X and the Council.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

7. Y’s EHC plan was finalised in April 2024. The Council apologised for the delay in finalising the plan and said it should have been finalised in mid-February 2024.
8. The Council has already looked into this complaint and offered a financial payment of £500 for the delay in finalising the plan. This offer is in line with our published guidance on remedies. The Council also explained what it was doing to improve its service. Because of this, I will not investigate this part of the complaint, as further investigation is unlikely to lead to a different outcome.
9. When the Council made the decision to name a school, Mrs X was given a right of appeal to the Tribunal. The lack of placement at the start of term and the absence of alternative provision are closely linked to that decision. The complaint about Y’s lack of education cannot be separated from the placement decision itself. This was something for the Tribunal to decide.
10. It would have been reasonable to expect Mrs X to use her appeal right, and, for this reason, I cannot look at her complaint about Y’s lack of education or transition arrangements. This is because the law prevents us from investigating matters which could have been resolved by the Tribunal. Our role cannot overlap that of the Tribunal.
11. Once the provision was named in the plan, the Council kept working with the school Mrs X preferred in the hope they would agree to allocating Y a place. In the end, the school agreed and the plan was updated to show the new placement.
12. Mrs X said the Council did not deliver some of the special educational provision in Y’s plan. However, the provision Mrs X refers to was designed to be delivered in Y’s school, which he did not attend. As a result, there is not enough evidence of fault by the Council to justify further investigation.

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Decision

13. I have discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman