Summary: We will not investigate Miss X’s complaint about how the Council carried out a review of her child’s Education Health and Care Plan. This is because it is reasonable for Miss X to use her right of appeal against the contents of the plan. Investigation into other matters would not lead to a different outcome.

The complaint

1. Miss X complains about how the Council carried out a review of her child’s Education Health and Care (EHC) Plan. She complains about provision removed and included in the final EHC Plan, delays arranging the review and how the Council communicated with her.

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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:

• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. 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)

4. The First-tier Tribunal (Special Educational Needs and Disability - SEND) 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

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Miss X complains that provision was removed from her child’s EHC Plan and inappropriate provision added. She says her views were not sought before these decisions were made. I will not investigate this element of Miss X’s complaint because it concerns the contents of the Council’s final EHC Plan and Miss X has a right of appeal to the SEND Tribunal. Only the SEND Tribunal can order the Council to make changes to the EHC Plan, so it is reasonable for Miss X to use that right of appeal.
8. The Council acknowledged that Miss X’s child’s school had arranged the annual review to be held 12 months after the last final EHC Plan had been issued, rather than 12 months after the last annual review. It apologised to Miss X and raised this with the school. I will not investigate this element of Miss X’s complaint because the Council’s response is proportionate and therefore investigation by the Ombudsman would not lead to a different outcome.
9. I will not investigate Miss X’s complaint about how it communicated with Miss X, including how it challenged Miss X about how it considered comments she made to be inappropriate. This is because any injustice caused by these matters is not significant enough to warrant investigation.

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Final decision

10. We will not investigate Miss X’s complaint because it is reasonable for Miss X to use her right of appeal against the contents of the plan. Investigation into other matters would not lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman