Summary: We will not investigate this complaint about delays in the Council’s handling of an Education, Health and Care Plan annual review. The Council has offered a proportionate remedy and there is insufficient remaining injustice to justify our involvement. We will not investigate matters relating to the content of the Education, Health and Care Plan as it would have been reasonable for the complainant use her right to appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The complaint

1. The Complainant, Mrs X, says the Council failed to comply with the Special Educational Needs (SEN) Code of Practice during the annual review of her child’s Education, Health and Care (EHC) plan, and failed to communicate appropriately with her during the process.

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The Ombudsman’s role and powers

2. 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
• 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))

3. 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)
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.

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mrs X’s child has an EHC plan. Her complaint concerns the conduct and outcome of annual review of the EHC plan and the subsequent amendments to it. She complains that the process was delayed and that the Council failed to communicate with her appropriately. She further complains that the Council’s consultation process was flawed, in that it did not consult with her preferred school, and that the final amended EHC plan contained errors.
8. The evidence shows that the decision to amend the EHC Plan following an annual review meeting, was delayed by eight weeks, as a result of which the amended EHC Plan was issued late. The Council has apologised and also accepts that it failed to communicate appropriately.
9. In recognition of the fault on its part, the Council has offered Mrs X payments totalling £300 in recognition of the fault. This is a proportionate remedy and is broadly in line with what the Ombudsman would be likely to seek to achieve in the circumstances of the case.
10. We will not investigate Mrs X’s complaint about the consultation process during the amendment of the EHC Plan, or her assertion that the final amended EHC Plan contains errors. This is because these matters relate to the content of the EHC plan, about which Mrs X had the right to appeal to the Tribunal. If Mrs X believed the amended EHC plan was flawed, her recourse was to appeal, and it would have been reasonable for her to do so.

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Final decision

11. We will not investigate Mrs X’s complaint because there is insufficient unremedied injustice to justify our involvement, and it would have been reasonable for Mrs X to use her right of appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman