Summary: We will not investigate this complaint about the Council’s handling of the complainant’s child’s special educational needs and Education Health and Care (EHC) plan. This is because the complaint has been substantially upheld and investigation by the Ombudsman is unlikely to lead to a different outcome.

The complaint

1. The complainant, Mrs X, complains the Council has failed take appropriate action when managing the EHC plan of her child, Y. She says this has caused distress and anxiety for both her and Y, and that Y was without an up-to-date EHC plan for over 12 months.

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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:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation.

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

4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (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 SEND 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. Mrs X complains the Council failed to ensure her child, Y, had the support needed to meet her special educational needs. Specifically, she complains the Council delayed the process of reviewing and amending Y’s EHC plan and did not secure updated professional reports during the process. She contends that, as a result, Y’s EHC plan did not meet her needs. In response to Miss X’s complaint, the Council accepts that it was at fault during the annual review process, which was delayed by 20 weeks. It also accepts that it failed to issue a formal decision notice.
9. Mrs X complains the Council’s delays and poor communication has impacted on both her and Y. The Council has admitted its delay in responding to Mrs X’s complaint, and apologised for how this has affected Mrs X and Y. In response to the fault on its part, the Council has offered Mrs X a payment of £1000 for the distress, time and trouble.
10. Where a complaint has already been upheld the Ombudsman will not normally investigate. In this case, it is unlikely that investigation by the Ombudsman would lead to a significantly different outcome and our intervention is not therefore warranted.
11. Where the right to appeal to tribunal has been used, the Ombudsman cannot investigate. We cannot, therefore, investigate the content or provision made in Y’s EHC plan as Mrs X has already appealed this. This restriction applies to the failure to obtain professional reports, as it is not separable form the content of the plan.

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Final decision

12. We will not investigate Mrs X’s complaint because our intervention is unlikely to lead to a different outcome. Part of the complaint cannot be investigated because of Mrs X’s appeal rights.

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Investigator's decision on behalf of the Ombudsman