Summary: We will not investigate this complaint about the Education, Health and Care Plan process for the complainant’s child. This is because it was reasonable for Miss X to use her right of appeal. Given the availability of an early review an investigation by the Ombudsman would be unlikely to achieve a worthwhile outcome.

The complaint

1. The complainant, whom I shall refer to as Miss X, complained about the Education, Health and Care Plan (EHC Plan) process for her child. Miss X is unhappy with the content of her child’s EHC Plan and how the Council decided it. Miss X says officers lied, wants changes to the EHC Plan, and support with navigating the Special Educational Needs (SEN) system.

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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. 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. 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.
5. 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:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal; or
• there is no worthwhile outcome achievable by our investigation.

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

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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. Miss X has complained to the Council about its handling of her son’s EHC Plan. Miss X was unhappy with the content of the EHC Plan, a lack of communication, and said she did not receive a response when she asked about Education Other Than At School (EOTAS). Miss X said the Council told her she could not apply for a personal budget and is unhappy the Council named Elective Home Education in the EHC Plan.
9. In its response to Miss X’s complaint the Council said it had included the amendments she asked for where appropriate, but it was also mindful of the timescales to finalise an EHC Plan. The Council said if Miss X was unhappy with the EHC Plan she could ask for an early review. The Council could not find a request for EOTAS, but this would not be agreed as the Council felt Miss X’s son could be educated in a school. Personal Budgets were not available when a child was electively home educated. Miss X had said she would home educate unless a special school place was found. Because this had not happened, the Council had finalised the EHC Plan. If Miss X asked for an early review, the Council would consider the personal budget issue and any amendments to the EHC Plan Miss X wanted to suggest.
10. We will not investigate Miss X’s complaint.
11. The issue at the heart of this case is the content of the EHC Plan and how it was decided. Parents unhappy with the content of their child’s EHC Plan have a right of appeal to the SEND Tribunal. It is the mechanism established by Parliament for parents to challenge such decisions. The Tribunal can decide if the content of an EHC Plan should be changed and if the Council should carry out any further assessments. These are not decisions we can take. An appeal to the Tribunal could, however, give Miss X the outcome she wants. We cannot. It was therefore reasonable for Miss X to appeal and so we will not investigate.
12. The way the Council reached its decisions about the content of the EHC Plan and the actions of its officers link directly to the matter Miss X could have appealed. We will not consider them in isolation.
13. The Council has also offered the option of an early review of the EHC Plan. Again, this could give Miss X some of the outcomes she wants. An Ombudsman investigation could not, and so our further involvement is not warranted.

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Final decision

14. We will not investigate Miss X’s complaint because it was reasonable for her to use her right of appeal to the SEND Tribunal. An Ombudsman investigation would be unlikely to achieve a worthwhile outcome.

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Investigator's decision on behalf of the Ombudsman