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 by the delay.

The complaint

1. Miss X complained about the delay in the Education, Health and Care (EHC) Plan process. She also complains about the Council failing to include her son’s autism diagnosis in the final EHC Plan and naming a school that was unsuitable.

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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 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.
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. 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))

6. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
7. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
8. 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

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

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My assessment

11. Miss X complained the Council delayed issuing her son’s final EHC Plan by 16 weeks. The Council upheld the complaint and apologised. The Council explained the delay was due to a shortage of Educational Psychologists (EP). This is service failure. This has caused Mrs X frustration and distress.
12. 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.
13. In cases like this we consider a payment of £100 to be a suitable remedy for each month of delay. We therefore asked the Council to remedy the injustice caused by making a payment to Miss X to resolve the complaint early. The Council has agreed to the following to remedy Miss X’s complaint:
• Pay Miss X £100 for each month of delay. This is a total payment of £400 and is to be paid to Miss X within four weeks of this decision.
14. Miss X’s complaint regarding the content of the final EHC Plan and the placement named are matters which have the right to appeal to the Tribunal. Where appeal rights exist, the Ombudsman usually expects them to be used. It would be reasonable for Miss X to use her right to appeal.
15. The fact that it would be reasonable for Miss X to appeal means that the content of the EHC Plan does not fall to be investigated by the Ombudsman. 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 when 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 Miss X’s complaint.

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Final decision

16. We will not investigate Miss 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