Summary: We will not investigate Miss X’s complaint about the Education, Health and Care Plan process. An investigation by the Ombudsman would not achieve a different outcome for Miss X and it was reasonable for her to appeal to the SEND Tribunal. Some other matters need to be considered by the Council.

The complaint

1. The complainant, whom I shall refer to as Miss X, complained the Council took too long to issue her daughter (Y) with an Education, Health and Care Plan (EHC Plan). Miss X is also unhappy with how the Council decided the EHC Plan’s content and has concerns about Y’s education since the Council issued the EHC Plan.

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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, or
• further investigation would not lead to a different outcome, or
• it would be reasonable for the person to ask for a council review or appeal. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. 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)
4. 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)
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 SEND Tribunal in this decision statement.
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)

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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

9. Miss X asked the Council to assess her child for an EHC Plan on 20 August 2023. The Council originally refused but changed its decision after mediation on 13 December 2023. The Council then had two weeks to start the assessment. The process then restarted at week 6 and should take a maximum of 20 weeks. Once the Council decided to issue an EHC Plan it should have done so by 15 May 2024. The Council eventually issued the EHC Plan on 30 October 2024 – five and a half months late.
10. The Council has accepted it has taken longer than it should to complete the process due to a shortage of Educational Psychologists. The Council has previously assured the Ombudsman of the actions it is taking to address delays in the EHC Plan process. We are therefore satisfied the Council has a plan to address this issue.
11. In response to Miss X’s complaint the Council offered a payment of £800. In cases like this we consider a payment of £100 to be a suitable remedy for each month of delay. An investigation by the Ombudsman would not therefore achieve a different outcome for Miss X. This is because we would not recommend a higher remedy than the one already offered. We will not therefore investigate the delay issue.
12. Miss X’s concerns about the content of the EHC Plan and how it was decided are also not for us. That is because parents who are unhappy with the content of an EHC Plan have a right of appeal to the SEND Tribunal. We generally expect parents to use that right as the Tribunal can order changes to the EHC Plan. That is not something we can do. It was therefore reasonable for Miss X to appeal if she wanted to challenge the content of the EHC Plan.
13. Miss X has also raised concerns about what has happened since the Council issued the EHC Plan. The Council has agreed to deal with these issues under its complaints process and so we will not consider them at the current time. If Miss X is unhappy with the Council’s final response, she can come back to the Ombudsman, and we will decide whether to investigate.

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Final decision

14. We will not investigate Miss X’s complaint because our involvement would not lead to a different outcome. It was also reasonable for Miss X to use her appeal rights, and some issues need to be considered by the Council.

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Investigator's decision on behalf of the Ombudsman