Summary: We will not investigate Ms X’s complaint about delay in her child’s Education, Health and Care Plan annual review process. An investigation would be unlikely to lead to a different outcome. Ms X has appealed to the SEND Tribunal about the content of the plan and the Tribunal can consider a complaint about lost education caused by delay in its process as part of her appeal.

The complaint

1. Ms X complains about delay in her child’s Education, Health and Care (EHC) Plan annual review process. She says this has caused distress, delayed her right of appeal and the wait for the Tribunal has led to lost education. She wants the council to improve its service and provide a financial remedy for the delayed appeal rights and the distress caused.

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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.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. 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)
4. The courts have established that if someone has appealed to a tribunal, we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
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.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. For young people moving from secondary school to a post-16 institution or apprenticeship, councils must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer. 
9. Ms X’s child, Y, has an EHC plan and was due to move to a post-16 institution in 2024. The Council completed Y’s annual review in March but did not issue a final amended plan until May 2024. Ms X was unhappy with the content of the plan and has appealed to the SEND Tribunal.
10. We will not investigate this complaint. The Council has accepted it delayed issuing the amended plan by about seven weeks. It upheld her complaint and apologised to her for the delay. This is sufficient to remedy any distress and uncertainty caused and it is unlikely an investigation into this would achieve anything more or lead to a different outcome.
11. Ms X has also used her right of appeal to the SEND Tribunal. If she considers the wait for the Tribunal hearing has led to Y missing out on educational provision, she can raise this with the Tribunal as part of her appeal.

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Final decision

12. We will not investigate Ms X’s complaint because it is unlikely an investigation would achieve anything more and the Tribunal can consider a complaint about lost provision caused by delay in the tribunal process as part of her appeal.

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Investigator's decision on behalf of the Ombudsman