Summary: We will not investigate Mrs X’s complaint about the annual review of her child’s Education, Health and Care Plan. The delay in issuing the revised plan was not significant enough to warrant our involvement. Mrs X has now appealed to a tribunal which places the rest of the complaint outside our jurisdiction.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained the Council took too long to review her child’s Education, Health and Care Plan (EHC Plan). Mrs X also complains about the process followed, including the consultation with schools, failing to listen to Mrs X’s views, and the decision-making process. Mrs X is unhappy with the EHC Plan the Council issued.

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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. (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 Tribunal in this decision statement.

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How I considered this complaint

6. I considered information provided by the complainant.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. We will not start an investigation into Mrs X’s complaint.
9. When a council reviews an EHC Plan it has 12 weeks to complete the process. In this case the Council failed to meet this timescale. But the delay of just under two months is not significant enough to warrant us investigating.
10. Mrs X is also unhappy with how the Council reviewed the EHC Plan including the consultation and decision-making process. The injustice from the alleged fault is an inappropriate EHC Plan. Parents who are unhappy with their child’s EHC Plan have a right of appeal to the Tribunal. It is the mechanism set up by Parliament for parents to use. We expect parents to use their right of appeal unless it is unreasonable for them to do so. The Tribunal can order the Council to amend the EHC Plan – we cannot.
11. Mrs X has now used her right of appeal to the Tribunal. This places the matter appealed and anything closely linked outside our jurisdiction. Any alleged failings in the consultation and decision-making process are not separable from the matter appealed to the Tribunal. We therefore have no powers to consider this part of Mrs X’s complaint.

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Final decision

12. We will not investigate Mrs X’s complaint. There is not enough evidence of fault by the Council and Mrs X has used her right of appeal.

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Investigator's decision on behalf of the Ombudsman