Summary: We will not investigate Ms X’s complaint about the Council’s handling of her child’s Education, Health and Care Plan. The delay by the Council was not significant enough to warrant our involvement. If Ms X was unhappy with the content of the plan it was reasonable for her to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The complainant, whom I shall refer to as Ms X, complained about the Council’s handling of her child’s Education, Health and Care Plan (EHC Plan). Ms X says the Council was late issuing the EHC Plan following an appeal to the Tribunal. Ms X says the EHC Plan is unlawful and the Council ignored recommendations made by professionals involved in her child’s case.

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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. 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, or
• any injustice is not significant enough to justify our involvement, or

(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 the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. We will not start an investigation into Ms X’s complaint.
9. Ms X says the Council was three weeks late in issuing her child’s EHC Plan. While frustrating for Ms X, it does not represent fault or injustice significant enough to warrant an investigation.
10. Ms X is unhappy with the content of the EHC Plan the Council has issued. Ms X is unhappy with how the Council decided the content of the EHC Plan.
11. Parents who are unhappy with the content of an EHC Plan have a right of appeal to the Tribunal. It is the mechanism set up by Parliament for parents to challenge such decisions. We expect parents to use their right of appeal unless it is unreasonable for them to do so. Ms X is also unhappy with the information the Council considered in deciding the EHC Plan. But the consequence of this is an EHC Plan Ms X considers unsuitable. The two matters are therefore directly linked. The Ombudsman cannot say the EHC Plan should be changed or that it is unlawful – but the Tribunal can. It was therefore reasonable for Ms X to appeal to the Tribunal.

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Final decision

12. We will not investigate Ms X’s complaint. The delay by the Council in issuing the final EHC Plan was not significant enough to warrant our involvement. It was reasonable for Ms X to appeal if unhappy with the EHC Plan the Council issued.

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Investigator's decision on behalf of the Ombudsman