Summary: We will not investigate this complaint about the handling of Miss X’s child’s Education, Health and Care needs assessment. This is because it would have been reasonable for Miss X to appeal to the tribunal.

The complaint

1. Miss X complains the Council delayed in issuing her child’s Education, Health and Care (EHC) Plan. She is also unhappy the Council has not allocated her child a place at her preferred special school.

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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 effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 Tribunal in this decision statement.

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How I considered this complaint

6. I considered information provided by Miss X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. The Council initially decided not to assess Miss X’s child as they did not meet the threshold. Miss X appealed this decision at Tribunal and before the hearing, the Council overturned their decision not to assess the child.
9. The Council then completed its assessment and issued the final EHC Plan but Miss X was unhappy with the named school. Miss X said the delay in assessment and issuing the plan impacted the decision on the school place.
10. Miss X had the right of appeal to the Tribunal and it is reasonable to expect her to have appealed against the decision on the named school. Miss X has already used her right of appeal to the Tribunal at an earlier stage. The process is free of charge and relatively simple to use. We are unable to change the named school on the child’s EHC Plan and the Tribunal is better placed to make a decision based on all the facts.
11. The Council acknowledges a delay in issuing the EHC Plan but the delay was relatively minor and we could not say it caused Miss X or her child significant injustice. We will not therefore investigate this point further.

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Final decision

12. We will not investigate Miss X’s complaint. This is because the complaint is primarily about a dispute over the contents of her child’s EHC Plan and it would have been reasonable for her to appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman