Summary: We will not investigate this complaint about the Council’s handling of the annual review process of an education, health and care plan because the injustice caused is not significant enough to warrant an investigation and the complainant can use her right to appeal to the Tribunal if she is unhappy with any amendments the Council may make to her child’s plan.

The complaint

1. Mrs X complains the Council delayed informing her of the outcome of the annual review of her child’s Education, Health and Care (EHC) Plan and its decision to make amendments to the EHC Plan at a later date was unlawful.

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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:

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

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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 Mrs X’s complaint.
9. There was a delay of two weeks and two days in the Council sending its decision not to amend the EHC Plan following the annual review. This delay did not cause injustice of a scale which warrants us investigating.
10. Parents who are unhappy with the contents of an EHC Plan have a right to 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.
11. If Mrs X is unhappy with the Council’s decision not to make amendments following the annual review, it is reasonable for her to use her right to appeal to the Tribunal.
12. Mrs X is concerned the Council will make amendments to the EHC Plan based on information obtained from an annual review that was held more than 12 months of a transfer between a phase of education. If Mrs X is unhappy with any amendments the Council may make to her child’s EHC Plan, she will have the right to appeal and it is reasonable to expect her to use this right.
13. Mrs X has sent further information regarding her concerns about the Council’s plans to amend EHC Plans over the summer in preparation for phase transfer for children and young people in its area. If there are parents who consider the Council has not held a review meeting within 12 months of a transfer between a phase of education, they have the option to raise a complaint with the Council using the relevant complaints process. If there are parents who consider their child’s EHC Plan contains out of date information, they have the right to appeal to the SEND Tribunal.
14. Mrs X is unhappy with wording the Council used in its complaint responses. We will also not investigate how the Council dealt with Mrs X’s complaint as it is not a good use of public resources to investigate complaints about complaint handling when we are not looking at the substantive issue.

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Final decision

15. We will not investigate Mrs X’s complaint because there is no significant injustice to warrant an investigation and it is reasonable for her to use her right of appeal to the Tribunal if she is unhappy with her child’s EHC Plan.

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Investigator's decision on behalf of the Ombudsman