Summary: We will not investigate this complaint about the delay in issuing an Education Health and Care plan, and that the school named in it is unsuitable. The complaint about the delay has already been upheld and investigation by the Ombudsman would achieve nothing further. It would be reasonable for the complainant to use her right to appeal against the named school.

The complaint

1. The complainant, Miss X, complains that the Council failed to issue her son’s Education Health and Care (EHC) plan within the appropriate timescale and failed to name an appropriate school for him

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The Ombudsman’s role and powers

2. 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 we could not add to any previous investigation by the organisation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. 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)
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.

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How I considered this complaint

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Miss X’s son has special educational needs and an EHC plan. Miss X complains that the Council failed to complete the EHC plan in time for her son to transition to secondary school with his sibling and peers. As a result, he missed out on preparation for transition and missed part of the first term at his new school.
8. In addition to the delay, Miss X complains that the school the Council named in Section I of the EHC plan is unsuitable and cannot meet her son’s needs.
9. The Council has upheld Miss X’s complaint about the EHC plan delay. It accepts that it failed to issue it in time and that this negatively impacted Miss X’s son’s transition to his new school.
10. The Ombudsman will not normally investigate complaints which have been upheld before they come to us. It is not a good use of our resources to do so. In this case, the Council has identified and apologised for the fault on its part, so further investigation is not warranted. The school was named in the EHC plan by the beginning of October 2024 so the place was available to Miss X’s son from that point. In the circumstances, the Council’s apology is an appropriate remedy, and our intervention is not warranted.
11. It is not for the Ombudsman to express a view on whether the school named in the EHC plan is appropriate. Miss X has the right to appeal to the Tribunal against the Council’s decision to name the school. Where appeal rights exist, the Ombudsman normally expects them to be used. It would be reasonable for Miss X to use her right to appeal and there is no role for the Ombudsman.

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Final decision

12. We will not investigate Miss X’s complaint because it has already been upheld in part, and it would be reasonable for Miss X to use her right to appeal.

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Investigator's decision on behalf of the Ombudsman