Summary: We will not investigate Mrs X’s complaint about the Council’s delay in issuing an Education, Health and Care Plan for her son. This is because the Council has apologised and offered a symbolic payment of £550, which is significant for the injustice caused. We cannot investigate Mrs X’s concerns about the way the Council reached its decision not to assess her son initially, as she has used her right of appeal, and if Mrs X disagrees with the contents of the final Education, Health and Care Plan issued it would be reasonable for her to appeal.

The complaint

1. Mrs X complains about delay in the issue of her son Y’s Education, Health and Care (EHC) Plan. She says the Council initially decided not to carry out an assessment but believes the basis for its decision is flawed. She complains about the length of time it took to start the assessment and about delay in issuing the draft and final EHC Plans. She also says the Council provided incomplete information to the Tribunal as part of her appeal and she is unhappy with the way the educational psychologist carried out their assessment prior to the Council issuing the final EHC Plan.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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.

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How I considered this complaint

6. I considered information provided by Mrs X and the Ombudsman’s Assessment Code.

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My assessment

7. We cannot look at the Council’s reasons for declining to assess Y initially or any delay which resulted from the decision not to carry out an assessment. This is because Mrs X appealed against the Council’s decision to the Tribunal and the Council had no control over how long the Tribunal took to hear the appeal.
8. The Council accepts it took too long to issue the draft and final EHC Plans following the Tribunal’s decision but the delay is limited to approximately one month. The Council has apologised for this and offered Mrs X a symbolic payment of £550. The amount of the payment is suitable to remedy the impact the delay had on Mrs X and Y and it is therefore unlikely we would recommend anything more. In coming to this view I have taken account of the fact that the delay largely results from the Council’s actions prior to the educational psychologist’s assessment. If therefore Y’s needs and the provision he required increased as a result of the delay this will be reflected in the educational psychologist’s report and the final EHC Plan.
9. While Mrs X also has concerns about the educational psychologist’s assessment any fault in the way the assessment was carried out, or in the accuracy of the report, is too closely linked to the contents of the EHC Plan itself for us to investigate. We cannot say the Plan is flawed and we have no powers to amend it, so if Mrs X disagrees with the Plan it would be reasonable for her to appeal.

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Final decision

10. We will not investigate this complaint. This is because the Council has provided a suitable remedy for its delay in issuing the final EHC Plan. Mrs X’s remaining concerns fall outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman