Summary: We cannot investigate some of Miss X’s complaint about the content of her child, Y’s, Education, Health and Care Plan because she appealed to a Tribunal. We will not investigate the remaining matters regarding delay and poor communication because the Council apologised, and the remaining injustice is not significant enough to warrant our involvement.

The complaint

1. Miss X complained the Council:
1. delayed finalising her child, Y’s, Education, Health and Care (EHC) Plan;
2. failed to obtain an Occupational Therapy (OT) assessment for Y’s EHC Plan and about the content of Y’s EHC Plan; and
3. failed to communicate with her effectively.
2. Miss X said the matter caused her frustration and uncertainty.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 Tribunal in this decision statement.
5. 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)
6. 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, or
• we could not add to any previous investigation by the organisation.

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

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How I considered this complaint

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Miss X applied for an EHC Plan for her child, Y, in early 2024. The Council considered the request, but wrote to Miss X in June 2024 and told her it would not make an EHC Plan for Y.
10. In early September 2024 the Council and Miss X engaged in mediation. The Council agreed to reconsider its position. It later agreed to make an EHC Plan for Y and said the timescale to complete the final EHC Plan was mid-November 2024.
11. The Council issued a draft EHC Plan for Y, but did not send a final EHC Plan until mid-January 2025.
12. Miss X complained to the Council. Her complaints included that the Council:
1. failed to issue an EHC Plan for Y in line with statutory timescales;
2. changed the caseworker several times over a short period leading to frustration, uncertainty, and missed meetings; and
3. failed to obtain an Occupational Therapy (OT) report.
13. In its complaint responses, the Council:
1. accepted it had delayed finalising Y’s EHC Plan. It apologised for the delay;
2. told Miss X it was experiencing staffing issues within its SEND service which resulted in changes to its structure and new staff being appointed. It apologised for the frustration and delay this caused; and
3. explained it would work with the educational psychologist to finalise Y’s EHC Plan.
14. Miss X remained dissatisfied with the final EHC Plan and appealed to the SEND Tribunal in March 2025.

Analysis

Delay in EHC Process & poor communication

15. We will not investigate these complaints. This is because, in its complaint response, the Council apologised for the delay in the EHC process and for the repeated changes in the allocated worker which resulted in additional delay and communication issues. Any remaining injustice is not significant enough to warrant an investigation for the period complained about, and so we will not investigate these matters.

Content of Y’s EHC Plan including the OT assessment

16. We cannot investigate Miss X’s complaints about the content of Y’s final EHC Plan or her complaint that the Council failed to obtain an OT assessment of Y. This is because Miss X appealed the content of the EHC Plan to the SEND Tribunal.
17. The law says where a person has used this right of appeal, the Ombudsman has no jurisdiction to consider the same matter. Miss X appealed the content of the EHC Plan to the Tribunal, so we have no authority to investigate.
18. The consequence of the Council’s alleged failure to obtain an OT report is that the EHC Plan is wrong. Miss X appealed to the Tribunal, and the Tribunal has wide ranging powers to order reports. Therefore, we cannot investigate this complaint.

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Final decision

19. We cannot investigate some of Miss X’s complaint because she appealed to a Tribunal, and the law says we cannot investigate. We will not investigate the remaining matters because the injustice is not significant enough to warrant our involvement.

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Investigator's decision on behalf of the Ombudsman