Summary: We will not investigate this complaint about how the Council dealt with an Education, Health and Care Plan as it provided a proportionate remedy for the delay in issuing the final Plan. We do not have discretion to investigate the content of the Education, Health and Care Plan as Ms X appealed to the Special Educational Needs and Disability Tribunal.

The complaint

1. Ms X complained that the Council:

• Delayed in issuing a final Education, Health and Care Plan for her child.
• Issued an unlawful Education, Health and Care Plan despite undertaking to resolve the matter without her needing to appeal to the Special Educational Needs and Disability Tribunal.
• Failed to notify Ms X that she could seek a review of the Council’s decision to refuse a personal budget and wrongly refused a personal budget.
• Refused to allocate a new caseworker.
• Breached General Data Protection Regulations by sending personal information to the wrong address.

2. Ms X says the Council’s actions caused significant distress to her and affected her child’s education and care.

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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 further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B)).
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. 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 to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
6. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.
7. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, delays in the process before an appeal right started.

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How I considered this complaint

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

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My assessment

10. Ms X applied for an Education Health and Care Plan (EHC) Plan for her child. The whole process from when an applicant requests an assessment to the issuing of the final EHC Plan should take no more than 20 weeks. In response to Ms X’s complaint, the Council acknowledged it had taken just over four months longer than it should have done to issue the final EHC Plan. The Council’s delay was mainly caused by the time taken by the education psychology service to provide its advice. The Council offered Ms X a payment of £500.
11. We will not investigate Ms X’s complaint about the Council’s delay in issuing the EHC Plan. There is a reported national shortage of educational psychologists. We generally recommend a remedy of £100 per month for every month a council takes over 20 weeks to issue the final EHC Plan due to the shortage of educational psychologists. So, the Council’s remedy of £500 is proportionate and it is in accordance with our guidance. An investigation would not achieve more for Ms X.
12. The Council previously shared its action plan with us for reducing the delays in the EHC Plan process caused by the shortage of educational psychologists. It is therefore not proportionate to recommend further service improvements.
13. We cannot investigate Ms X’s complaint that her child’s EHC Plan is unlawful. Ms X exercised her right of appeal to the Tribunal. So, we do not have discretion to investigate this complaint. The issue of whether the Council undertook to resolve the matter is connected to the content of the EHC Plan which Ms X is appealing. So, we cannot investigate this complaint.
14. Ms X requested a personal budget. The Council refused her request as she wanted a personal budget for provision that was not included in the EHC Plan. In response to Ms X’s complaint, the Council acknowledged it failed to notify her of the right to seek a review of its decision not to agree a personal budget. The Council then notified Ms X of her right of review. We will not investigate this complaint as the Council put matters right by notifying Ms X of her right of review.
15. Ms X sought a review of the Council’s decision not to agree a personal budget. The Council again refused to agree a personal budget as Ms X’s request was to fund provision that was not in the EHC Plan. We will not investigate Ms X’s complaint The purpose of a personal budget is to fund provision set out in the EHC Plan so there is insufficient evidence of fault in how the Council made its decision. The question of the provision which Ms X considers should be in the EHC Plan is a matter for the Tribunal.
16. We will not investigate Ms X’s complaint about the Council refusing to allocate a new caseworker as there is insufficient evidence of fault to justify an investigation. It is a matter for the Council to decide how it allocates its staff.
17. The Council acknowledged it sent a document containing Ms X and her family’s personal information to the wrong address. The Council increased its total remedy to £750. The increase of £250 is proportionate to acknowledge the distress caused to Ms X. Further investigation will not achieve more for her.

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Investigator's decision on behalf of the Ombudsman