Summary: We will not investigate Miss X’s complaint about the Council’s delay in issuing an Education, Health and Care Plan for her child. This is because the Council has provided a suitable remedy for the issue. We cannot investigate Miss X’s complaint about the contents of the final Education, Health and Care Plan because Miss X has used her right of appeal to the SEND Tribunal.

The complaint

1. Miss X complains the Council took too long to issue her son’s Education, Health and Care (EHC) Plan and named a school in his plan which she says cannot meet his needs.

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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 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 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 the Miss X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. In total the Council has taken more than 20 months to complete the EHC needs assessment process and issue the final EHC Plan. This is more than 15 months over the 20-week period allowed by law.
9. The Council accepts it took too long to issue the EHC Plan and has apologised for this. It explained that a lack of Educational Psychologists has contributed to the delay. The delay amounts to service failure.
10. The Council has agreed to pay Miss X £1,560 in recognition of the impact of the delay on Miss X and her child. This is broadly in-line with our Guidance on Remedies and our approach in similar cases where we have recommended £100 for each month of delay. I therefore consider the remedy is sufficient for the injustice caused the Council’s delay.
11. While Miss X also complains about the decision to name a school she considers is not suitable for her child we cannot investigate this decision or the process leading up to it. This is because Miss X has appealed against the Council’s decision. The complaint therefore falls outside our jurisdiction as set out at Paragraph 4.
12. We will not separately investigate Miss X’s concerns about the Council’s handling of her emails about this issue because there is little we could achieve for her by doing so. She says officers were rude and failed to respond to her emails but these claims are not significant enough to warrant investigation or a remedy and do not provide a way to question the contents of the EHC Plan.

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Final decision

13. We will not investigate Miss X’s complaint about the Council’s delay in the EHC needs assessment process because the Council has provided a suitable remedy for the issue. We cannot investigate her concerns about the Council’s decision to name a school she considers unsuitable because she has appealed against the decision.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman