Summary: We will not investigate Miss X’s complaint about the Council’s delay in reviewing her child’s education, health and care plan. The Council has accepted fault and provided a proportionate remedy for the injustice caused. Further investigation by us is unlikely to achieve anything more. It would have been reasonable for Miss X to appeal to the Tribunal if she still disagreed with the final education, health and care plan.

The complaint

1. Miss X complains about the Council’s delay in reviewing her child’s education, health and care (EHC) plan. She says the delays prevented her child from being considered for a place at their preferred specialist unit within a mainstream school. She says her child’s current mainstream setting is unsuitable.
2. She wants to Council to accept its failings. She also wants the Council to show whether her child would have had a different outcome if there had been no delay.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. We may decide to investigate if we consider it would be unreasonable to expect the person to use this right but cannot investigate if the person has already used it. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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

7. I considered information provided by Miss X and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. The Council accepted there was a delay in reviewing the EHC plan. It apologised for this and offered Miss X a financial remedy of £500 in recognition of the distress and delays.
10. I am satisfied the Council has taken proportionate action to remedy the injustice caused. Investigation by us is unlikely to achieve anything more.
11. Whether Miss X’s child would have been considered, or offered a place, by her preferred specialist unit is speculative. We cannot say what would have happened if the review had taken place in time and decisions about school placements depend on several factors. The Council has named an alternative setting in the EHC Plan and if Miss X believed it was unsuitable, it would have been reasonable for her to use her right of appeal to the Tribunal.

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Final decision

12. We will not investigate Miss X’s complaint because investigation by us is unlikely to achieve anything more and it would have been reasonable for her to use her right of appeal to the Tribunal.

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Investigator's decision on behalf of the Ombudsman