Summary: We will not investigate Mrs X’s complaints about delays in the annual review of her child’s Education, Health and Care (EHC) Plan, the decision to name a specific school within the EHC Plan, or her concerns about the Council’s consultation with schools. This is because Mrs X had a right to appeal to a Tribunal and it was reasonable for her to use that right. For the remainder, an investigation is unlikely to achieve any additional outcome.

The complaint

1. Mrs X complained the Council:
1. delayed finalising her child, Y’s, Education, Health and Care (EHC) Plan following an annual review in April 2024;
2. failed to communicate with her;
3. named an inappropriate school in her child’s final EHC Plan; and
4. failed to consult with one of her preferred schools.
2. Mrs X said this caused her frustration, distress and uncertainty.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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.
5. 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)
6. 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
• further investigation would not lead to a different outcome, 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

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

Delay in EHC review process and poor communication

9. We will not investigate this complaint. This is because, in its complaint response, the Council accepted it had failed to adhere to the statutory timescales when reviewing Y’s EHC Plan. The process should have taken no longer than 12 weeks. The Council finalised Y’s EHC Plan after 30 weeks.
10. The Council apologised for the delay and offered Mrs X a £250 symbolic payment to acknowledge the distress and frustration caused. It also apologised for the frustration caused by its poor communication.
11. This is in line with the Ombudsman’s Guidance on Remedies. Therefore, an investigation by us is unlikely to achieve any additional outcome.
12. In addition, during a recent investigation by us, the Council agreed to create and send the Ombudsman an action plan to identify issues in its annual review processes, to put in place monitoring, and to expedite reviews or decision making where it is aware it has exceeded statutory timescales.
13. As the Council has recently agreed to these service improvements, an investigation into these matters is unlikely to achieve any additional outcome.

Inappropriate school and school consultations

14. Mrs X was dissatisfied with the Council’s consultations with schools for her child’s EHC Plan. This included:
1. naming Y’s current school in their final EHC Plan even though Mrs X said the school could not meet Y’s needs. Mrs X also said the school informed the Council it could not meet Y’s needs;
2. failing to consult with a school Mrs X wanted the Council to consult with; and
3. about delays in the consultation process.
15. We will not investigate these matters. The consequence of the Council’s alleged poor school consultations was that, in Ms X’s view, the named school in the final EHC Plan was wrong. Once the final EHC Plan was made, Mrs X had a right to appeal the content of the EHC Plan to the SEND Tribunal.
16. The law says we cannot investigate a matter which could be taken to a Tribunal unless we decide there are good reasons. Mrs X was dissatisfied with the content of Y’s EHC Plan, and I have seen no good reasons she could not have appealed to the Tribunal. Therefore, we will not investigate this complaint.

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Final decision

17. We will not investigate Mrs X’s complaint because she had a right to appeal to a Tribunal, and an investigation into the remaining matters is unlikely to achieve any additional outcome.

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Investigator's decision on behalf of the Ombudsman