Summary: We will not investigate this complaint about delay in the annual review of an Education, Health and Care Plan. This is because the injustice from the delay is not significant enough to warrant an investigation. If Mrs X wants to challenge the content of her child’s Education, Health and Care Plan then it is reasonable for her to appeal to a tribunal.

The complaint

1. The complainant, Mrs X, complained the Council delayed in reviewing her child’s EHC Plan. Mrs X says she had to chase the Council causing distress, inconvenience and time and trouble. Mrs X is also unhappy with the content of the final EHC 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:

• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or

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

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.

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. A Council has four weeks from an annual review meeting to issue a notice saying whether it intends to amend an EHC Plan. If the decision is to amend the EHC Plan, the Council should send a draft version. The Council then has eight weeks to issue a final amended EHC Plan. The process should therefore take a maximum of 12 weeks.
8. Mrs X’s child has an EHC Plan. The Council reviewed this on 22 July 2024. The Council was late in the sending the draft EHC Plan and the entire process should have been completed by 14 October – 12 weeks later. The Council issued the final EHC Plan on 18 October.
9. While I recognise Mrs X’s frustrations, we will not investigate her complaint. The personal injustice caused by the Council’s delay is not significant enough to warrant an investigation by the Ombudsman.
10. If Mrs X wants to challenge the content of the EHC Plan, then she can appeal to the SEND Tribunal. It is the mechanism set up by Parliament for parents to challenge decisions about EHC Plans. The SEND Tribunal can decide if the EHC Plan should be changed. That is not something we can do. The SEND Tribunal can give Mrs X the outcome she wants and so it is reasonable for her to appeal.

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Final decision

11. We will not investigate Mrs X’s complaint because the injustice is not significant enough to justify our involvement. It is reasonable for Mrs X to use her right of appeal if she wants to challenge the content of her child’s EHC Plan.

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Investigator's decision on behalf of the Ombudsman