Summary: We will not investigate this complaint about the Education, Health and Care Plan (EHC Plan) process for the complainant’s child. If Mrs X is unhappy with the EHC Plan it is reasonable for her to appeal to the First-tier Tribunal (Special Educational Needs and Disability). An investigation by the Ombudsman would be unlikely to add anything to the Council’s complaint response or achieve a different outcome. The delay by the Council in issuing a final EHC Plan is not significant enough to warrant an investigation and we will not look at complaint handling in isolation.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained about the Council’s handling of her child’s EHC Plan. Mrs X says the Council failed to properly assess her child’s needs and wanted to finalise the EHC Plan before all assessments were complete. Mrs X says the Council provided misleading information about the process. Mrs X says the Council took too long to issue her child’s final EHC Plan and is also unhappy with the way the Council handled her complaint.

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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 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:

• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

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

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My assessment

8. We will not start an investigation into Mrs X’s complaint.
9. Mrs X has raised concerns about the process the Council followed to complete her child’s EHC Plan. The process a council follows to decide the content of an EHC Plan is closely linked to the eventual content of the EHC Plan. Any faut in the process would primarily lead to injustice in the form of an inadequate plan.
10. Parents who are unhappy with the content of an EHC Plan have a right of appeal to the SEND Tribunal. It is the method set up by Parliament for parents to challenge such decisions. If Mrs X feels the assessment process has affected the content of her child’s EHC Plan, then it is reasonable for her to appeal to the SEND Tribunal. It can decide if further assessments should be carried out and order changes to the EHC Plan. These are not decisions the Ombudsman can take. So, even if we looked at the process followed, we could not say the EHC Plan should be changed. We could not achieve a worthwhile outcome.
11. In response to Mrs X’s complaint the Council has explained the rationale for the information provided about the EHC Plan process. An investigation would be unlikely to add anything to the Council’s response. And like above, if Mrs X feels this affected the content of the EHC Plan, then it is a matter for the SEND Tribunal, not the Ombudsman.
12. From the information available it is clear the Council did take too long to issue the EHC Plan, and it has apologised for this. While I understand Mrs X’s frustrations, the delay is not significant enough to warrant our involvement. An investigation would not be proportionate given the injustice caused by the delay.
13. Finally, Mrs X is unhappy with the Council’s handling of her complaint. This includes a member of staff named in the complaint responding to Mrs X. The Council has explained why this happened. We will not normally look at complaint handling as a standalone issue if we are not looking at the issue which led to the original complaint. This applies here and so we will not investigate.

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Final decision

14. We will not investigate Mrs X’s complaint because:
• It is reasonable for her to appeal to the SEND Tribunal.
• We could not add anything worthwhile to the Council’s response.
• The injustice caused by the delay is not significant enough to warrant an investigation.
• We will not look at complaint handling as a standalone issue.

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Investigator's decision on behalf of the Ombudsman