Summary: We will not investigate Miss X’s complaint about the Council’s handling of her child’s Education Health and Care Plan. It was reasonable for Miss X to have appealed to the Tribunal.

The complaint

1. Miss X complained the Council:
• Refused to assess her child Y, for an Education Health and Care Plan (EHC Plan) in 2022.
• Failed to issue an EHC Plan in 2023, after it completed a needs assessment.
• Failed to arrange alternative provision for Y when they could not attend school at the start of 2024.
• Had not secured suitable post-16 education for Y from September 2024 onwards.
2. Miss X said the Council’s decision not to provide Y an EHC Plan in 2022 caused their wellbeing to deteriorate as they did not receive the support they needed. She said that resulted in them becoming unwell and being unable to attend school. She said Y not being in post-16 education had caused financial difficulties for the family.
3. Miss X wants the Council to improve its practices, improve the information it provides about the appeals process and pay compensation for the distress and financial loss its actions had caused.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. 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)
7. 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.
8. 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:

• there is not enough evidence of fault to justify investigating, or
• 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

9. I considered information provided by the complainant and the Council.
10. I considered the Ombudsman’s Assessment Code.

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My assessment

11. Miss X applied to the Council for an EHC Plan for Y in 2022. The Council refused to assess Y and Miss X appealed. The law says we cannot investigate a complaint where someone has used their right of appeal. Therefore, we cannot investigate the Council’s decision not to assess Y for an EHC Plan.
12. After the commencement of appeal proceedings, the Council agreed to complete an EHC needs assessment. Following that assessment, the Council decided not to issue an EHC Plan. Miss X said that decision was based on a flawed educational psychologist’s assessments. She also said the Council failed to consider all relevant information in making its decision. Despite disagreeing with the EHC Plan, Miss X chose not to appeal. She said that was because the Council had told her there was a significant delay in appeals being heard by the SEND Tribunal.
13. Where the law provides a right of appeal, we expect people to use it. If Miss X was unhappy with the Council’s decision not to issue an EHC Plan it was reasonable for her to appeal. We would not consider delays in the SEND Tribunal hearing appeals good reason not to appeal.
14. At the start of 2024, Y could not attend school because of ill-health. Y’s school (the School) arranged on-line learning, however Y did not receive in-person education for around six-weeks. Although Ms X is unhappy with how Y received education during this period we will not investigate. That is because the period Y went without in-person education is relatively short, therefore there is not enough significant injustice to justify our involvement. In addition, the Council’s complaint response indicates the School needed to identify a suitable venue to meet Y needs, before in-person education could start. Although this took a short period of time, there is not enough evidence of fault to justify investigating.
15. After Y stopped attending school, the Council decided to issue Y an EHC Plan. It used the previous EHC needs assessment it had completed in 2023. It issued a final EHC Plan in April 2024. Miss X said she asked the Council for a new educational psychologist’s assessment to inform the EHC Plan but it refused. The final EHC Plan named a type of provision for Y’s post-16 education (mainstream), but did not specify an education provider. Miss X states she worked with the School to identify a suitable post-16 education provider, but could not secure Y a place in college. She said because of this Y had had to start an apprenticeship.
16. Where the Council does not name a school in Section I, we would expect a person to use their right of appeal to the SEND Tribunal. In these circumstances, it was reasonable for Miss X to appeal, as not only had the Council failed to name a provider for Y, she was also unhappy it did not complete a new educational psychologist’s assessment. Only the SEND Tribunal could instruct the Council to complete a new assessment to ensure the EHC Plan reflected Y’s needs and name a post-16 provider. As Miss X had the right of appeal, we will not investigate the Council’s failure to arrange post-16 provision. That is because the lack of provision is due to there being no named placement in the EHC Plan. This is a matter she could have appealed.

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Final decision

17. We will not investigate Miss X’s complaint because it was reasonable for her to appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman