Summary: We will not investigate Mrs X’s complaint about the Council’s delay in issuing her daughter an Education Health and Care Plan because it has offered a suitable remedy for the injustice the delay caused Mrs X. We cannot investigate Mrs X’s complaints about the Council’s refusal to carry out an assessment and its decisions on the contents of the final Plan because Mrs X has appealed to the SEND Tribunal.

The complaint

1. Mrs X complains the Council refused to carry out an Education Health and Care (EHC) needs assessment for her daughter Y. The Council conceded Mrs X’s appeal and agreed to assess Y but Mrs X complains it took too long to complete the process. Mrs X is also unhappy the Council did not conduct occupational health or speech and language therapy assessments and that the final EHC Plan does not address Y’s 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 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 Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Because Mrs X appealed against the Council’s decision not to carry out an EHC needs assessment we cannot investigate any complaint about his decision or provide a remedy for the impact of the decision on Mrs X or Y.
9. We also cannot investigate any complaint about the contents of the final EHC Plan or the way the Council reached its decision about this, as Mrs X has now appealed against various sections of the Plan to the SEND Tribunal.
10. It therefore follows that the only issue we can look at is the delay in the EHC needs assessment process from the date the Council agreed to carry out an assessment, to the date it issued the final EHC Plan.
11. The Special Educational Needs and Disability (SEND) Regulations 2014 (Regulation 45) says that where a council concedes an appeal before a full Tribunal hearing and decides to issue an EHC Plan, as the Council did in this case, it must do so within 14 weeks. The Council conceded Mrs X’s appeal on 15 July 2024 so it should have issued the final EHC Plan by 21 October 2024. However the Council did not issue Y an EHC Plan until 24 January 2025. This amounts to a delay of three months.
12. The Council accepts it did not complete the process in time and has offered Mrs X a remedy of £300 for her uncertainty and delay. The Council’s offer is in line with our Guidance on Remedies and I consider it is sufficient for the injustice caused by the Council’s delay. It is therefore unlikely investigation would achieve anything more for Mrs X.
13. Mrs X has refused the Council’s offer and gives her reasons as for this as the “multitude of failures” raised in her complaint. However, as set out at Paragraphs 8-9 we cannot investigate these other issues and cannot therefore use them as a reason to recommend any further remedy.

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Final decision

14. We will not investigate this complaint. This is because the Council has offered a suitable remedy for its delay and we cannot investigate Mrs X’s complaints about its initial decision to refuse to assess Y and the contents of the final EHC Plan because Mrs X has appealed to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman