Summary: We will not investigate Mrs X’s complaint about the Education, Health and Care Plan process for her child. Mrs X has not been caused an injustice significant enough to warrant the Ombudsman investigating. It is reasonable for Mrs X to use her right of appeal if she wants to challenge the content of her child’s Education, Health and Care Plan.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained the Council took too long to respond to her request that it assess her child for an Education, Health and Care Plan (EHC Plan). Mrs X says the Council then refused her request, forcing her to appeal to the SEND Tribunal. Mrs X says the Council conceded the appeal and then took too long to issue an EHC Plan. Mrs X is unhappy the Council has relied on an Occupational Therapy report which she says is out of date and inaccurate. Mrs X has also raised concerns about the Council’s handling of her complaint.

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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:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement, or
• 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))

3. 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)
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. We will not start an investigation into Mrs X’s complaint.
10. When a council is asked to assess a child for an EHC Plan it has six weeks to decide whether to assess. In this case the Council was ten days late responding to Mrs X’s request.
11. Our role is to consider complaints where the person bringing the complaint has suffered significant personal injustice as a direct result of the actions or inactions of the organisation. This means we will normally only investigate a complaint where the complainant has suffered serious loss, harm, or distress as a direct result of faults or failures. We will not normally investigate a complaint where the alleged loss or injustice is not a serious or significant matter.
12. The injustice to Mrs X from the Council’s delay in responding is not significant enough to warrant us investigating.
13. Parents who want to challenge a council’s decision not to assess their child for an EHC Plan have a right of appeal to the SEND Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions. Mrs X used her right of appeal. Once a parent uses their right of appeal the matter is outside our jurisdiction until the Tribunal issues its decision. This exclusion includes the original decision challenged and any related matters – such as the Council’s conduct during the appeals process.
14. In this case the Council conceded the appeal shortly before the hearing – that is not something we can consider. It then had until 02 May 2025 to issue a final EHC Plan. The Council issued a final EHC Plan on 06 June. So, while frustrating for Mrs X, the injustice from the delay is again not significant enough to warrant us investigating. This decision takes into account the fact there will have been a half-term break during the delay period.
15. Finally, Mrs X says the Council is relying on an out of date and inaccurate Occupational Therapy report. The main injustice from this would be the content of the EHC Plan. Mrs X questions if the EHC Plan is lawful and is unhappy with the setting named. Again, this is a matter Mrs X can appeal to the SEND Tribunal. We have no powers to say what an EHC Plan should contain, but the SEND Tribunal does. It can say if the Council should carry out fresh assessments and if the EHC Plan should be changed. We cannot and it is therefore reasonable for Mrs X to use her right of appeal.
16. Mrs X is concerned about the Council’s handling of her complaint and the time taken to respond. But it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue. That is the case here.
17. Mrs X has also raised concerns about provision not being delivered. That needs to be put to the Council as a specific complaint and so we will not consider this point. If Mrs X was unhappy with the Council’s response to a complaint about this issue, she could make a fresh complaint to the Ombudsman.

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Final decision

18. We will not investigate Mrs X’s complaint. The injustice is not significant enough to warrant our involvement, and it is reasonable for Mrs X to use her right of appeal.

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Investigator's decision on behalf of the Ombudsman