Summary: We cannot investigate how the Council decided on the placement it would name in an Education, Health, and Care Plan. This is because Ms X had a right to appeal this decision and it would have been reasonable to expect her to use this right. Nor will we investigate Ms X’s complaint about delays in issuing the plan, because there is no significant injustice remaining that would justify an investigation.

The complaint

1. Ms X said the Council acted unlawfully when it issued a final Education, Health, and Care (EHC) Plan, naming a mainstream school as a placement for her son (Y). Ms X also said the Council were at fault because it delayed issuing the EHC Plan by the required date, to help Y transition to his new school.
2. Ms X said the Council’s actions caused her and Y stress and anxiety, and delayed her right of appeal.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. 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))

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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 is the parent of a Y, who is a child with an EHC Plan, who was due to move from primary education to secondary education. Ms X complained because the Council had not issued a final EHC Plan, by the due date in mid-February 2024. Ms X said this left her unsure of which school Y would move to and it placed Y at a disadvantage. She also said it delayed her right of appeal.
9. The Council explained why it had not issued a plan and then did so by the end of February, naming a mainstream school setting in section I (educational placement). Ms X said this was unsuitable and she and the Council then had ongoing discussions about other school consultations.
10. We will not investigate the delays in the Council issuing a final EHC Plan. The evidence shows it did so after she complained, to allow her a right of appeal, it explained why it was doing this, and given the short period of the delay, there is no significant injustice.
11. Ms X said the Council then went on to issue a further final EHC Plan, naming a more suitable school placement and this was not until several months later. Ms X said this meant Y lost out on moving with other likeminded peers and so this was an injustice.
12. We cannot consider this part of Ms X’s complaint nor the injustice she complains about. This is because we cannot consider the consequences of a decision, where the decision itself is excluded from our jurisdiction. The decision in this complaint, is the Council’s decision to name a mainstream school placement.
13. Ms X disagreed with that decision and she had a right of appeal, and in all the circumstances of this complaint, it would have been reasonable to expect her to use this right. The period we cannot investigate starts from the date the appealable decision is made.

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Final decision

14. We cannot investigate Ms X’s complaint because parts of it were appealable to the SEND Tribunal and of the remaining parts, there is no significant injustice remaining that would justify an investigation.

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Investigator's decision on behalf of the Ombudsman