Summary: We will not investigate Mrs X’s complaint about the Council’s delays when issuing an ‘education, health and care plan’ for her child. This is because it is unlikely we could achieve significantly more than the symbolic payment the Council has offered Mrs X.

The complaint

1. Mrs X applied for an ‘education, health and care’ (EHC) Plan for her child, but the Council declined to issue one.
2. Mrs X complains the educational psychologist’s assessment was not thorough enough and did not see how significant her child’s needs were. She appealed against the Council’s decision but is unhappy with the length of time it took to deal with her appeal. The Council has now agreed to issue an EHC Plan, but Mrs X complains the Council has taken too long to complete the process and issue the Plan.
3. Mrs X says the Council’s actions have affected her child’s education and stopped them from choosing a secondary school.

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The Ombudsman’s role and powers

4. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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).
7. 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

8. I considered information provided by Mrs X.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. An EHC Plan is a formal document that outlines the support a child or young person with special educational needs and disabilities (SEND) requires across education, health, and social care. It sets out their needs, the provision, and the results they are working towards. Decisions on whether to issue an EHC Plan and the support a child or young person needs carry a right of appeal to the First Tier Tribunal (Special Educational Needs and Disability).
11. The Council initially declined to issue Mrs X’s child an EHC Plan and Mrs X appealed against this decision. Because she has used her right of appeal, we cannot investigate any complaint about the decision itself, as set out at Paragraph 6.
12. We also cannot investigate the way the Council reached its decision or its conduct in relation to the appeal. This includes the Council’s alleged failure to provide paperwork to the tribunal, changing its mind on the matter before the tribunal and the length of time the Council took to change its mind. This is because these matters are all too closely related to the matters that were or could have been raised at the tribunal.
13. The Council has now agreed to issue an EHC Plan and accepts there were delays in completing the process. It said this was because of a shortage of educational psychologists.
14. The Council’s delay caused Mrs X uncertainty and frustration. It has offered to make a symbolic payment of £700 to Mrs X and this provides a suitable remedy for Mrs X’s injustice. It is therefore unlikely further investigation would achieve significantly more for her.
15. I appreciate Mrs X believes the delay caused her child to miss out on provision listed in their EHC Plan, but the Plan was not in place at the time and we cannot speculate as to its contents, had the process been completed more quickly. An educational psychologist’s report takes into account a child’s needs at the point of the assessment, and it is therefore expected that any additional needs resulting from delays will be incorporated into the final EHC Plan. If Mrs X disagrees with the type or level of provision listed in the Plan it would be reasonable for her to appeal. Mrs X may also appeal if she disagrees with the school named by the Council in the EHC Plan.
16. Mrs X also complains about the waiting period for a ‘special educational needs and disability tribunal’ (SENDIST) hearing. The SENDIST considers parents' appeals against the decisions of the Education Authority about children's special educational needs. The Council is not responsible for the waiting period. It is a matter for the tribunal, which is not a body within our jurisdiction. We cannot therefore investigate this further.

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Final decision

17. We will not investigate Mrs X’s complaint because it is unlikely investigation would achieve significantly more than the symbolic payment the Council has offered her.

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Investigator's decision on behalf of the Ombudsman