Summary: We will not investigate this complaint that the Council was at fault in the process of reviewing and amending the complainant’s child’s Education Health and Care plan. There is insufficient evidence of fault on the Council’s part, and thit would be reasonable for the complainant to use her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, Mrs X, complains that the Council was at fault in the process of reviewing and amending her child’s Education Health and Care (EHC) plan.

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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. (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) 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. Mrs X’s son has special educational needs and an EHC plan. Mrs X complains that the Council was at fault in the process of reviewing and amending the EHC plan. Specifically, she complains that the review process was subject to delay, and the Council took longer than necessary to finalise the amended EHC plan.
8. Mrs X also says the Council’s communication was flawed throughout the process. She says the Council failed to consult her on the draft document on which it consulted schools. She contends that, as a result of the fault on the Council’s part, the amended final EHC plan does not meet her son’s needs.
9. There are insufficient grounds for us to investigate Mrs X’s complaint about the delay in the review process. The decision to amend the EHC plan was communicated to her a week later than it should have been. However, the amended Final EHC plan was subsequently issued within the time available to the Council to do so. The process was not significantly delayed overall, and the Council’s apology is reasonable and proportionate in the circumstances.
10. The Ombudsman will not investigate the alleged fault in the process of amending the EHC plan. This is because the matters Mrs X has raised are not separable from the outcome of the process, which is the content of the final EHC plan. This is a matter where Mrs X has the right to appeal to the Tribunal. Where appeal rights exist, the Ombudsman normally expects them to be used. It would be reasonable for Mrs X to use the recourse available to her and we will not intervene.

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Final decision

11. We will not investigate Mrs X’s complaint because there is insufficient evidence of fault, and it would be reasonable for her to use her right to appeal.

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Investigator's decision on behalf of the Ombudsman