Summary: We will not investigate this complaint about delay following the annual review of an Education, Health and Care Plan. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. The injustice caused is not significant enough to warrant an investigation.

The complaint

1. The complainant, Miss X, complained the Council took too long to complete the annual review of her son’s Education, Health and Care Plan (EHC Plan). Miss X says draft versions of the EHC Plan removed vital provision. The Council included this provision in the final EHC Plan. Miss X says the Council’s actions caused anxiety, distress, and put Miss X to avoidable time and trouble.

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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. 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 any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. 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)
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 the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. When a council reviews an EHC Plan it has 12 weeks to complete the process. In this case the Council took almost three months. The Council was therefore at fault.
9. While I recognise Miss X’s frustrations over the delay, we will not start an investigation into her complaint. There was no lost provision, and while Miss X’s right to appeal to the SEND Tribunal was delayed, this is not a right of appeal she used. The proposed content of the EHC Plan is not something we will consider. If the Council had decided to remove the provision, then Miss X could have appealed to the SEND Tribunal.
10. We do not investigate all the complaints we receive and the personal injustice from the delay is not significant enough to warrant us investigating.

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Final decision

11. We will not investigate Miss X’s complaint because the injustice is not significant enough to justify our involvement.

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Investigator's decision on behalf of the Ombudsman