Summary: We will not investigate this complaint about the Education, Health and Care plan process. This is because the Council has agreed to an appropriate remedy for the injustice caused.

The complaint

1. Mrs X complained the Education, Health and Care (EHC) Plan issued by the Council was ineffective. Mrs X would like the Council to provide an effective plan to support her child.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and s34H(1), as amended)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

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

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My assessment

Delay

9. Mrs X complained to the Council about the way it handled the Education, Health and Care (EHC) needs assessment process for her child. The Council upheld Mrs X’s complaint about the delay. It acknowledged the EHC Plan was delayed by three months and it apologised.
10. The Council has previously assured the Ombudsman of the actions it is taking to address delays in the EHC Plan process. We are therefore satisfied the Council has a plan to address this issue.
11. In cases like this we consider a payment of £100 for each month of delay to be a suitable remedy. We therefore asked the Council to remedy the injustice caused by making a payment to Mrs X to resolve the complaint early. The Council has agreed to the following to remedy Mrs X’s complaint:
• Pay Mrs X £300 for the three-month delay in issuing the final EHC Plan and to issue this remedy payment within four weeks of this decision.
12. The Council has agreed a suitable remedy and is taking steps to address the issue of delay. We will not therefore investigate.

Content of the EHC Plan

13. Mrs X says the EHC Plan issued by the Council is ineffective and requests an effective plan to be issued. The content of an EHC Plan is a matter which has the right of appeal to the Tribunal. Where appeal rights exist, the Ombudsman usually expects them to be used. It would be reasonable for Mrs X to use her right to appeal.
14. The fact that it would be reasonable for Mrs X to appeal means that the content of the EHC plan, and matters which are connected to the content, do not fall to be investigated. This is because the courts have established that, if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal. The same restrictions apply where someone had a right of appeal to the Tribunal, and it was reasonable for them to have used that right. We cannot investigate this aspect of Mrs X’s complaint.

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Final decision

15. We will not investigate Mrs X’s complaint because the Council has offered a suitable remedy for the identified injustice.

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Investigator's decision on behalf of the Ombudsman