Summary: We will not investigate the complaints about the content of an Education, Health and Care Plan, the process the Council used to create it, or delays in the assessment. This is because Mrs X has used her right of appeal to the First-tier Tribunal (SEND) about these matters and the remaining complaints are late.

The complaint

1. Mrs X complained the Council caused unreasonable delays in her son, C’s Education, Health and Care Needs (EHCN) assessment and created an unsuitable plan on several occasions. She says the Council did this by:
• Considering her correspondence as a new assessment application not an appeal,
• Taking more than 20 weeks to complete the EHCN assessment,
• Failing to consider all needs as evidenced and name a suitable school
2. She also complained the Council failed to consider behaviours reported during the EHCN assessment as a safeguarding concern.
3. She says this caused significant distress and financial repercussions. She says she has had to self-fund C’s school placement for longer than necessary, pay for legal support and get her own reports to challenge the Council’s conclusions.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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)
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 the complainant.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. Mrs X sought an EHCN assessment for C in late December 2022. Mrs X complained the Council took 40 weeks to complete the assessment. She feels that failures in the assessment meant she had no choice but to appeal to the tribunal.
11. We cannot investigate Mrs X’s complaints. She has used her right of appeal to the tribunal about her concerns the Council’s actions affected the outcome of the assessment. Her remaining complaints about the time it took the Council to complete the assessment happened some time ago and are now late. There is not sufficient reason to exercise discretion.

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Final decision

12. We will not investigate Mrs X’s complaint because she has used her right of appeal to the tribunal and because part of her complaint is late.

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Investigator's decision on behalf of the Ombudsman