Summary: We will not investigate this complaint about how the Council dealt with Mrs X’s child’s Education, Health and Care Plan following an annual review. It is reasonable to expect Mrs X to have appealed to the Tribunal against the Council’s decision not to change the Education, Health and Care Plan. There is insufficient evidence of fault and injustice to justify an investigation into other aspects of Mrs X’s complaint.

The complaint

1. Mrs X complained that the Council:

• Failed to amend and issue an updated Education, Health and Care (EHC) Plan for her child, Y, following an annual review.
• Failed to amend section F of the EHC Plan to include the recommended amount of SALT provision.
• Delayed in issuing a ‘no change’ letter to the following the annual review.
• Failed to include her comments in the annual review record.
• Failed to ensure Y’s speech and language therapy (SALT) provision was made in accordance with the EHC Plan.
• Failed to consider an Occupational Therapy (OT) report and include it in Y’s EHC Plan.
• Failed to properly investigate a safeguarding incident at Y’s school.
• Failed to respond to her subject access request.

2. Mrs X says that as a result her child lost timely access to SALT and OT provision which has affected his communication and development and caused her to home educate her child.

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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. 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).
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. There is a right of appeal to the Tribunal against a council’s decision not to amend an EHC Plan following a review or reassessment.
6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. 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, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

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

8. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)

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How I considered this complaint

9. I considered information provided by Mrs X and the Council.
10. I considered the Ombudsman’s Assessment Code.

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My assessment

11. The Council decided not to change Y’s EHC Plan following an annual review. The Council wrote to Mrs X explaining that it would not change Y’s EHC Plan. The letter also explained that Mrs X had the right to appeal to the Tribunal if she disagreed with this decision. Mrs X disagreed with the decision as she considered Y required increased SALT and Occupational Therapy (OT) provision. Mrs X did not appeal.
12. We will not investigate Mrs X’s complaints about the Council’s decision not to change Y’s EHC Plan, not to issue an updated EHC Plan and not to include additional SALT provision in section F of the EHC Plan. Mrs X had the right to appeal to the Tribunal against the Council’s decision not to change Y’s EHC Plan to include increased SALT provision. The Council notified Mrs X of her right of appeal so it is reasonable to have expected her to appeal to the Tribunal.
13. We will not investigate Mrs X’s complaint about the Council delay in issuing the no change letter. The Council took four weeks longer than it should have done to send the no change decision to Mrs X. This length of delay would not cause significant enough injustice to justify an investigation of this aspect of Mrs X’s complaint.
14. We will not investigate Mrs X’s complaint about the school not including her comments in the annual review record. We cannot investigate the actions of the school in how it dealt with the annual review. The Council included Mrs X’s comments in Y’s file so her comments are on record. An investigation would not achieve anything more for her.
15. We will not investigate Mrs X’s complaint about the Council not ensuing Y received the SALT provision in accordance with her child’s EHC Plan. The EHC Plan said Y should receive face to face SALT at least twice a year. The Council’s complaint response shows the school delivered two sessions in accordance with the EHC Plan. Mrs X said she had to chase the Council for the sessions to be provided. But as the SALT provision was made, there is insufficient evidence of fault to justify an investigation.
16. Some weeks after the Council issued the no change decision, Mrs X sent a copy of an OT report to the Council. In response to our enquiries, the Council said it considered the OT report but the recommendations did not amount to special education provision. So, the Council considered that it was not necessary to review Y’s EHC Plan. We will not investigate this aspect of Mrs X’s complaint. The Council has considered the OT report and provided a reasoned explanation for why it did not review Y’s EHC Plan. So, there is insufficient evidence of fault to justify an investigation.
17. The Council acknowledged that it did not issue an amended section I of Y’s EHC Plan to reflect Mrs X is electively home educating Y. We will not investigate this aspect of Mrs X’s complaint. The Council has undertaken to issue the amendment which is the action we would have asked it to take. So, an investigation would not achieve more for Mrs X.
18. We will not investigate Mrs X’s complaint that the Council did not investigate a safeguarding incident in Y’s school. The school, not the Council, was responsible for investigating the incident. So, there is insufficient evidence of fault to justify an investigation.
19. We will not investigate Mrs X’s complaint about how the Council dealt with her subject access request. It is open to Mrs X to make a complaint to the Information Commissioner about the Council’s handling of her request. We consider the Information Commissioner is best placed to investigate this aspect of Mrs X’s complaint.

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Final decision

20. We will not investigate Mrs X’s complaint as it is reasonable to expect her to have appealed to the Tribunal against the Council’s decision not to change Y’s EHC Plan. There is insufficient evidence of fault and injustice to justify an investigation into other aspects of the complaint.

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Investigator's decision on behalf of the Ombudsman