Summary: We will not investigate Miss X’s complaint about a lack of educational support for her son. This is because the issue stems from the Council’s decision not to issue him an Education Health and Care Plan and the decision carried a right of appeal which it would have been reasonable for Miss X to use.

The complaint

1. The complainant, Miss X, complains that as a result of the Council’s initial refusal to issue her son Y an Education Health and Care (EHC) Plan, he missed out on more than a month of education and started a new placement without support in place for his special educational needs. She says this affected Y’s mental wellbeing and led to the family paying for advocacy to challenge the decision and private tutoring while he was out of education.

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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 effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
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. 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 Miss X and the Ombudsman’s Assessment Code.

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My assessment

7. Where it appears a child or young person has special educational needs which require additional support they, a parent or someone acting their behalf may ask for an EHC needs assessment. Following completion of an EHC needs assessment, if the Council decides an EHC Plan is not necessary it must notify the child's parents or the young person of its decision and of their right to appeal that decision.
8. Miss X’s complaint focuses on the impact of the Council’s decision not to issue Y an EHC Plan. It made this decision in June 2024 but later reversed the decision and agreed to issue Y a Plan following several meetings and mediation. Miss X considers the support Y would have received under an EHC Plan would have allowed him to remain in school but that the lack of support resulting from the decision not to issue him an EHC Plan led to him being out of school.
9. The decision not to issue Y an EHC Plan carried a right of appeal which it would have been reasonable for Miss X to use. We cannot therefore investigate the impact of the original decision in delaying the issue of the Plan or provide a remedy for this. We also cannot recommend the Council reimburses Miss X for the cost of instructing a professional advocate to assist with challenging the Council’s decision or for the cost of private tutoring she commissioned as a result of Y being out of school.
10. I have however considered whether there was any significant delay by the Council putting in place alternative provision for Y under Section 19 of the Education Act 1996 following his exclusion from school, which could have contributed to Miss X’s costs of private tuition. But the evidence I have seen supports the Council’s position that it only became aware of Y’s exclusion on 10 June 2024 and that missed the deadline for arranging alternative provision by only one working day. I could not therefore say this caused significant injustice either to Miss X in terms of the costs of private tuition or to Y. I do not therefore consider further investigation into this point would achieve any worthwhile outcome for Miss X.
11. From the information I have seen it appears the Council may have exceeded the statutory timescales for issuing the EHC Plan after it reversed its decision but this was not part of Miss X’s complaint to the Council so we cannot investigate the issue further at this time. Should Miss X wish to pursue it she would need to raise a new complaint with the Council. If, once the complaint has exhausted the Council’s complaints procedure Miss X remains unhappy she may ask us to consider it further.

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Final decision

12. We will not investigate this complaint. This is because the delays Miss X refers to, which are the cause of the injustice she claims, are the result of the Council’s decision not to issue an EHC Plan. This decision carried a right of appeal we consider it would have been reasonable for Miss X to use and we cannot therefore investigate the issue or recommend a remedy for it.

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Investigator's decision on behalf of the Ombudsman