Summary: We will not investigate Miss X’s complaint about Education Health and Care Plan issues. It is reasonable to expect Miss X to appeal to the Tribunal. And those matters separable from an appeal are not significant enough fault or cause significant enough direct injustice to warrant an investigation.

The complaint

1. Miss X says the Council delayed in amending B’s, Education Health and Care Plan (EHC Plan) and has not met B’s needs.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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.
4. 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))

Back to top

How I considered this complaint

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

Back to top

My assessment

7. B moved to live with Miss X in April 2024, having moved to a Council C to live with other family. The Council became aware within days that B was out of school. B has an EHC Plan. The Council obtained the EHC Plan from the Council C around a month later.
8. Miss X says B was not able to attend the setting named in their EHC Plan. The Council says it was not able to arrange alternative provision at another setting as B was in Year 11 which meant that summer term they were sitting exams and not teaching. It held an annual review in July and issued an amended EHC Plan in September.
9. Miss X says the Council should have arranged immediate education. She says it delayed in issuing a final amended EHC Plan and this does not include the SALT she believes is needed. She says the Council is delaying in assessing the SALT provision.

Analysis

10. We will not investigate whether the current EHC Plan meets B’s needs including the SALT provision. Miss X has a right of appeal to the Tribunal if she was unhappy with the EHC Plan and it is reasonable to expect her to have used that right.
11. Miss X says the Council missed the end of March deadline for amending the EHC Plan for a transfer to post 16. B was not living in this Council’s area until after that deadline. We are therefore unlikely to find fault on this issue.
12. The Council should have notified Miss X within six weeks of it knowing B was living in its area if it intended to review the EHC Plan, and then three months to do so. The Council’s delays are not significant enough nor is the direct injustice from those delays significant enough to justify an investigation.

Back to top

Final decision

13. We will not investigate Miss X’s complaint because it is reasonable to expect her to appeal and the fault and direct injustice is not significant enough to justify an investigation.

Back to top

Investigator's decision on behalf of the Ombudsman