Summary: We will not investigate this complaint about the Education Health and Care needs assessment process. This is because Mrs X has used her right of appeal to a tribunal and most of the issues raised are not separable from this appeal. The delays following the conclusion of the appeal have not caused Mrs X or her child a significant injustice.

The complaint

1. Mrs X complains that the Council has delayed carrying out an Education Health and Care (EHC) needs assessment for her son, Y since 2022. Miss X says the Council should reimburse her for private reports she has obtained in support of her application, loss of earnings and tuition costs.

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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 injustice is not significant enough to justify our involvement. (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 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. The Council received an application for an EHC needs assessment for Z in 2022 and the Council agreed to assess but delayed making a decision whether to issue an EHC Plan or not until June 2023, when it concluded that it would not issue an EHC Plan. The Ombudsman has previously found the Council to be at fault because it delayed making this decision.
8. Mrs X appealed the Council’s decision not to issue an EHC Plan to the SEND Tribunal, and a hearing was arranged to take place in June 2024. The Council conceded the appeal and issued a final EHC Plan in early September.
9. I will not investigate any delay by the Council up to June 2023. This is because we have previously considered delay up to this period and we cannot accept repeat complaints about the same issues.
10. I cannot investigate the Council’s decision not to issue an EHC Plan because Mrs X used her right of appeal to the SEND Tribunal. The Council’s actions during the appeal, what reports it obtained and Z’s education provision in place whilst the appeal was being considered are not separable from the appeal itself.
11. After conceding Mrs X’s appeal there was a delay in issuing Z’s final EHC Plan. However, this delay was relatively short and therefore I do not consider that this has caused Mrs X or Z a significant enough injustice to warrant investigating this point.

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Final decision

12. We will not investigate Mrs X’s complaint because she has used her right of appeal to a tribunal and most of the issues raised are not separable from this appeal. The delays following the conclusion of the appeal have not caused Mrs X or her child a significant injustice.

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Investigator's decision on behalf of the Ombudsman