Summary: We will not investigate Mrs X’s complaint about the delays issuing her daughter G’s Education, Health and Care (EHC) Plan because the Council has offered a suitable remedy. There is nothing we could add to the Council’s response to Mrs X’s complaint about her dealings with the Council once the Council issued the draft Plan. The school the Council named in the Plan now says it cannot meet G’s needs. The Council is responsible for ensuring G receives the special educational provision in her plan. If Mrs X is unhappy with its efforts to do so, she should complain to the Council in the first instance.

The complaint

1. Mrs X complains about delays in an education, health and care (EHC) needs assessment for her daughter, G. She complains about her dealings with the Council once the Council issued a draft Plan.
2. In particular, Mrs X complains:
• the Council took 26 weeks to issue the draft Plan;
• the Council offered a meeting to discuss the draft, but issued a final Plan without the meeting taking place;
• the Council named an alternative school alongside her preferred school in the final Plan. Mrs X says she would not consider sending G to this school; and
• the Council named her preferred school without a response from the school to say it could meet G’s needs. A month after the Council issued the Plan, the school said it could not meet G’s needs.

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The Ombudsman’s role and powers

3. 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:

• we could not add to any previous investigation by the organisation, or
• we cannot achieve the outcome someone wants, or
• further investigation would not lead to a different outcome.

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

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 Mrs X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mrs X complained to the Council and the Council responded at both stages of its complaints process.
9. The Council explained the delays were caused by demand for its Education Psychology service, as well as the absence of an individual officer. The Council apologised for the delay and offered a symbolic payment of £300.
10. The Council referred to email correspondence between Mrs X and the case officer following Mrs X’s request for a meeting to discuss the draft Plan. The Council said it understood from Mrs X’s messages that she was happy to respond by email. The Council took account of her comments.
11. The Council explained Council the reference to a “nearer suitable school” in section I of G’s EHC Plan was to justify its decision not to provide transport to Mrs X’s preferred school. The Council accepted Mrs X had no intention of sending G to this school.
12. The Council explained it had consulted Mrs X’s preferred school, and when the consultation period passed with no response from the school, the Council issued a final Plan which named the school in section I.
13. A month after the Council issued the final Plan, the school responded to say that it could not meet G’s needs. I understand G was already on roll at the school, although she was not attending regularly at the time.
14. The Council has acknowledged it was at fault for the delay issuing G’s draft EHC Plan and offered a suitable remedy. There is nothing more we could add.
15. There is insufficient evidence of maladministration in the Council’s decision to issue a final Plan without a meeting to justify further investigation by us. At worst, there was a misunderstanding on both sides. There is nothing we could add to the Council’s response by further investigation.
16. There was no fault naming a second school in G’s Plan for the purposes of transport arrangements.
17. Naming a school without a formal response to the consultation seems a risky strategy. Having named the school in the Plan, the Council is responsible for ensuring the school delivers the special educational provision it sets out. If the school is unable to do so, the Council must act quickly.
18. Mrs X is understandably concerned about the implications for G.
19. We cannot say whether the school is suitable, or whether the Council should have named a different school. We have neither the authority nor the expertise. Parents have a right of appeal to the SEND Tribunal to challenge decisions of this nature. If Mrs X was unhappy with the school named, she could have appealed.
20. When she complained to us, Mrs X said that G was not attending school. If G remains out of school, and Mrs X is unhappy with the Council’s actions to resolve the problems at her school, Mrs X should make a new complaint to the Council. If she is unhappy with the Council’s response, she can complain to us again. However, the Council must be given an opportunity to respond first.

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Final decision

21. We will not investigate Mrs X’s complaint about the delays issuing her daughter G’s Education, Health and Care (EHC) Plan because the Council has offered a suitable remedy. There is nothing we could add to the Council’s response to Mrs X’s complaint about her dealings with the Council once the Council issued the draft Plan. The school the Council named in the Plan now says it cannot meet G’s needs. The Council is responsible for ensuring G receives the special educational provision in her plan. If Mrs X is unhappy with its efforts to do so, she should complain to the Council in the first instance.

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Investigator's decision on behalf of the Ombudsman