Summary: We upheld Mrs X’s complaint about delays in finalising her child’s Education, Health and Care Plan following an annual review meeting. The Council upheld the complaint and agreed to remedy Mrs X’s injustice by providing a financial remedy of £500 in line with the Ombudsman’s Guidance on Remedies. We cannot investigate Mrs X’s complaint about a loss of educational provision. This is because most of this is closely linked to tribunal proceedings and the law says we cannot investigate. We will not investigate the period which the law would allow us to consider because the injustice is not significant enough.

The complaint

1. Mrs X complained about:
1. delays following a review meeting regarding her child’s (Y) Education Health and Care (EHC) Plan; and
2. about a loss of educational provision for Y.
2. Mrs X said the matters delayed her right of appeal to the Special Educational Needs and Disabilities (SEND) Tribunal and caused distress.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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 any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
6. 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)
7. 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)
8. 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.
9. 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

10. I considered information provided by the complainant and the Council.
11. I considered the Ombudsman’s Assessment Code.

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My assessment

12. Mrs X complained about delays after Y’s EHC review meeting in January 2024.
13. While Mrs X’s complaint would ordinarily be late because she has likely known about the matters for more than 12 months, I have exercised discretion to consider it. This is because the Council delayed responding to her complaint, and this contributed to the delay in Mrs X bringing the complaint to us.
14. Following an EHC annual review meeting if a council decides to update an EHC Plan it should send the final updated EHC Plan within 12 weeks of the review meeting. In this case, the Council issued the final EHC Plan in late October 2024. This was 21 weeks later than the 12-week deadline.
15. The Council upheld this part of Mrs X’s complaint and offered a symbolic payment of £500 to acknowledge the frustration and uncertainty caused to Mrs X and Y. This is in line with the Ombudsman’s Guidance on Remedies. Therefore, while we uphold the complaint, we will not investigate because an investigation would not achieve anything further.
16. Mrs X also complained that Y had suffered a loss of educational provision because of Council delays during the review process and because of the setting named in their EHC Plan.
17. We cannot investigate any loss of education which occurred after the Council issued the updated EHC Plan in late October 2024. This is because Mrs X used her right of appeal to the Tribunal about the suitability of the named placement in Y’s EHC Plan. The reason Y is not receiving their education is too closely related to the matter appealed to the Tribunal. The Tribunal will now determine the most suitable placement for Y. Therefore, we cannot investigate this complaint.
18. The available evidence suggests Y was out of school in early September 2024 for several weeks for medical reasons. Therefore, the Ombudsman could investigate whether the Council considered its alternative provision duties during this time.
19. However, any injustice for missed educational provision between September 2024 to October 2024 is not significant enough to warrant an Ombudsman investigation. Therefore, we will not investigate.

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Final decision

20. We upheld Mrs X’s complaint about delays following an Education Health and Care review meeting because the Council upheld it and agreed to provide a suitable remedy. We will not investigate Mrs X’s complaint about missed educational provision because the law says we cannot investigate most of it, and for the remainder the injustice is not significant enough.

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Investigator's decision on behalf of the Ombudsman