Summary: We will not investigate Ms X’s complaint about Education Health and Care Plan decisions. She appealed one decision to the Tribunal, and it is reasonable to expect her to appeal another. We are unlikely to achieve significantly more than the Council has offered for a short delay in the process.

The complaint

1. Ms X says the Council delayed in making Education Health and Care Plan (EHC) Plan decisions and failed to follow the correct procedures.

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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 SEND Tribunal in this decision statement.
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. 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; or
• there is no worthwhile outcome achievable by our investigation.
  (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

6. I considered information provided by Ms X, which included the Council’s reply.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Ms X asked the Council in January 2024 to assess her child, B, for an EHC Plan. In March 2024 the Council said no. In July 2024 Ms X appealed the Council’s decision to the Tribunal. In September 2024 the Council conceded the appeal and agreed it would assess B’s needs.
9. After it completed its assessment it told Ms X in January 2025 that it would not issue an EHC Plan.
10. Ms X complained to the Council about its decisions, the delays in the process and the process itself. She says the Council has ignored emails and professional reports. Ms X says the mental load of sorting this out and chasing the Council has damaged her. She says the timescales are silly.
11. The Council in reply said that it should have made its decision not to issue an EHC Plan by mid November and had been late in doing so. It offered her £100 for this delay in appeal rights and uncertainty.

Analysis

12. We cannot change the timescales Ms X disagrees with. They have been set by Parliament. We cannot investigate the delays in the appeals process.
13. We cannot investigate the decision not to assess B made in January 2024 as Ms X appealed to the Tribunal. We cannot look at the process which led to that decision, as the injustice which flows from any faults, is the decision itself which Ms X appealed.
14. We will not investigate the Council’s decision in January 2025 not to issue an EHC Plan as it is reasonable to expect Ms X to appeal to the Tribunal. And again we will not look at the process which led to that decision as it is integral to the decision which is appealable.
15. The Council’s offer of £100 for the delay between mid November 2024 and its decision in January 2025 meets with our remedies’ guidance. It is unlikely that we would achieve more.

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Final decision

16. We will not investigate Ms X’s complaint because she appealed one decision, it is reasonable for her to appeal another and we are unlikely to achieve more than the Council has offered for a delay we could investigate.

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Investigator's decision on behalf of the Ombudsman